An expansive view of 'state secrets'

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When the Electronic Frontier Foundation in San Francisco filed suit against AT&T for, it said, giving the National Security Agency "secret, direct access to phone calls and e-mail ... detailing the activities of millions of ordinary Americans," the Justice Department went to the judge, as it often has in such cases, insisting the lawsuit not be heard because it involves "state secrets."

Federal District Judge Vaughn Walker in San Francisco -- pointing to the continuing, widespread public controversy over the president secretly authorizing the NSA's warrantless disregard of individual privacy rights -- ruled that there was no urgent state need for secrecy.

Moreover, he added significantly, "it is important to note that even the state-secrets privilege has its limits. While the court recognizes the executive's constitutional duty to protect the nation from threats, the court takes seriously its constitutional duty to adjudicate the disputes that come before it... To defer to a blanket assertion of secrecy here would be to abdicate that duty."

Most importantly -- if other federal judges take courage from Judge Walker's insistence on the rule of law -- he said (and future historians will quote): "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enforcement of security."

In a number of previous cases buried by the government's invocation of "state secrets," other federal judges could have, in the interest of justice, taken similar action, but they were intimidated into abdicating their duty.

Lest anyone think that Judge Walker is one of those brazen liberal "activist" judges -- that many infuriated conservatives insist are endangering the republic -- the California First Amendment Coalition, a useful news source on legal matters, reports that Judge Walker, "a former corporate lawyer," was appointed by the first President Bush and is considered a conservative in the legal community.

As Steve Aftergood of the Federation of American Scientists points out in his valuable Secrecy News Blog (www.fas.org/blog/secrecy), Judge Walker's rare act of constitutional independence is especially noteworthy since the government's "state secrets" silencer is so often successful.

Says Mr. Aftergood: "Although the assertion of the state-secrets privilege has (only) been denied by judges on at least four occasions ... those denials seem to have been based on technical defects or procedural failings rather than a substantial judicial assessment of the merits."

If there is a future book of judges' profiles in courage -- and there should be -- Judge Walker would be an inspirational choice for inclusion.

To illuminate the government's scorched-earth policy in terminating cases with the "state secrets" bludgeon, attorney Glenn Greenwald, author of "How Would a Patriot Act?," points out that some judges "have allowed the government to assert the privilege without even submitting the documents in question to a judge for the judge to review in secrecy (a process known as in-camera review)."

When judges so automatically trust the government that they abdicate their very reason for being on the bench, justice has not only been denied -- it's been decapitated.

But in this class-action suit brought by the Electronic Frontier Foundation against AT&T -- questioning the legality of the National Security Agency's secret, omnivorous invasion of Americans' privacy -- Judge Vaughn Walker did see, as the California First Amendment Coalition reports, "classified affidavits from the ... Director of National Intelligence and the head of the National Security Agency": "Filed in a special security facility in Washington, D.C., these super-classified documents were transported under armed guard to California for viewing by Judge Walker."

Keep in mind that there was no permitted cross-examination of the documents by lawyers from the Electronic Frontier Foundation. They were not allowed to see the documents. (There should be a future book detailing all the changes in the Bill of Rights by this administration.)

Judge Walker examined these documents by the nation's highest-ranking intelligence officials, and he found they were blowing smoke. The question now is whether the appellate circuit court -- and, if it gets there, the Supreme Court -- are frightened into submission when a lawyer from Alberto Gonzales' robotic Justice Department gravely says: "State secrets! Shut this case down."

The administration, of course, has appealed Judge Walker's decision, solemnly claiming "particularly sensitive national security interests are at risk." If the appeal succeeds, so is the rule of law at risk.