How the White House is covering up CIA abductions, brutal interrogations
and spying on Americans.
American presidents have long tested the bounds of executive power during wartime.
But when it comes to protecting its secrets, the Bush administration has flexed
unilateral power to a degree never before seen in U.S. history.
Since 2001, the administration has wielded the "state secrets" privilege
as a wide-ranging weapon to snuff out legal challenges to its most Draconian
tactics in the global war on terror. At stake are no less than bedrock American
moral and legal principles. Bush lawyers have aimed to shoot down court cases
involving the indefinite detention and brutal interrogation of prisoners, the
covert transfer of terror suspects to foreign governments known to torture,
and domestic surveillance prying into the lives of thousands of Americans.
Established by a Supreme Court ruling in 1953, the state secrets privilege
allows the executive branch to limit or dismiss court cases that may expose
sensitive information and jeopardize national security. To that end, a judge
can decide to disallow certain evidence, or even go so far as to quash the whole
case, without further remedy in the court system.
When asked, U.S. judges have almost always consented to state secrets claims.
But it has come up rarely -- just four times in the first 23 years following
the 1953 decision. After that, state secrets claims were filed at a fairly even
pace during the Cold War and beyond, once or twice per year, under Democratic
and Republican presidents alike.
But over the past five years, lawyers representing the Bush administration
have asked federal judges to throw out cases entirely at least 21 times -- and
likely more often than that, according to Meredith Fuchs, the general counsel
for the National Security Archive at George Washington University. Beyond the
21 cases, there could be others that have yet to turn up in her research, Fuchs
says, simply because the court or the news media doesn't always report on such
cases to the public. Other cases facing demise by state secrets privilege may
have begun under seal because of their sensitivity and are therefore unknown
to the public -- Fuchs says she knows of at least one such case pending in federal
district court in Washington.
The White House appears to have realized how powerful a tool the state secrets
privilege can be, Fuchs says. "There's no question that this administration
is using it at a significantly higher rate than any other before it."
But even more than the pace, what now matters is the potency of the tactic,
says John Kroger, a professor at Lewis and Clark law school and a former federal
prosecutor. "We're seeing a radical departure in how state secrets is being
invoked," he says. "We're talking about government actions affecting
millions of Americans. We're facing major questions about constitutional law,
and the Bush government is saying they can't be adjudicated at all. It's a huge
shift in the landscape from how this doctrine has been used in the past."
Three cases challenging domestic spying -- what the Bush White House calls
its "terrorist surveillance program" -- are stirring in federal court.
Bush lawyers have moved to suppress all of them, citing state secrets privilege.
A pivotal decision could come today in San Francisco, where U.S. District Judge
Vaughn Walker could be the first to rule on such a claim in a domestic surveillance
case. He'll decide whether the Bush administration's argument should mean the
end -- before it ever begins -- of a class action lawsuit against AT&T for
secretly handing over customers' phone calls to the government in the name of
In the hands of the Bush administration, the baseline for state secrets is
no longer scrubbing a case of sensitive evidence, but wiping the case away completely.
Historically, most state secrets claims were about stopping the disclosure of
specific evidence, and the cases proceeded with those limits in place. Particularly
sensitive cases could even be conducted entirely under seal. Kroger points to
the trial that followed the 1993 World Trade Center bombing. All the defense
attorneys in the case had to get classified security clearance, and evidence
was reviewed inside a secure facility.
"To prevent a case from going forward at all by claiming that the entire
case itself would jeopardize national security," Kroger says, "is
a really drastic remedy."
It's a remedy administration lawyers are using with progressively more brazen
rationale. At issue in San Francisco, in Hepting v. AT&T, is whether the
telecom company gave Uncle Sam access to customer phone calls with or without
necessary court authorization. Yet, administration lawyers filed a brief late
last week claiming that "the court -- even if it were to find unlawfulness
upon in camera, ex parte review [a review done privately by the judge in chambers]
-- could not then proceed to adjudicate the very question of awarding damages
because to do so would confirm Plaintiffs' allegations."
In other words, the Bush lawyers argue that even if Walker determined behind
tightly closed doors that the Bush government broke the law, he could do nothing
-- because to continue with any court proceedings or ruling, they argue, would
confirm the existence of domestic surveillance operations and thereby jeopardize
national security. Apparently, they've taken that position even though domestic
surveillance activity under Bush has been covered by every major news outlet
and has been acknowledged, albeit only narrowly, by top Bush officials and the
"It would be hard to overstate the significance of this proceeding,"
Steven Aftergood, director of the Project on Government Secrecy at the Federation
of American Scientists, said in an e-mail. "It is not just a dispute over
surveillance. It is a test of our whole system of government. They are not only
arguing that the courts cannot adjudicate the matter, but that Congress is powerless
to limit the government's activities. If the administration prevails, then we
will be well on our way to a different form of government in which executive
authority is effectively unchecked."
Dozens of private class action lawsuits have been filed across the country
against telecom companies this year, following news reports of domestic surveillance
under Bush. But on Monday, administration lawyers filed a motion to have all
the lawsuits consolidated into one case in federal court in Washington, where
they intend to seek dismissal. There is now also a growing list of state officials,
from New Jersey to Missouri, subpoenaing information from telecom companies;
the government has already intervened in New Jersey citing state secrets privilege
and will no doubt do so from coast to coast.
The Bush administration's aggressive deployment of state secrets claims bears
no small resemblance to right-wing Senate Republicans threatening to wipe out
Democratic filibustering of judicial nominees. It has become a "nuclear
option" for the executive branch, one that aims to obliterate any judicial
check on Bush's most central, most closely held tactics in the war on terror.
"It's clear from the last five years that the administration has the overall
goal of reducing scrutiny of its actions in the national security realm,"
Kroger says. "These state secrets cases are part and parcel of that strategy."
It's a strategy that Vice President Cheney trumpeted again this week, while
answering questions at a National Press Club luncheon in the nation's capital.
Cheney reiterated his belief that fallout from the Watergate scandals and the
Vietnam War beginning 30 years ago had allowed Congress "to encroach upon
the powers and responsibilities of the president." When it came to conducting
national security policy, he said, "it was important to go back and try
to restore that balance," and to return to a "strong presidency."
He cited the administration's terrorist surveillance program as a prime example.
Robert Dallek, the presidential historian, says that "invoking the national
security card" during tumultuous times is not unusual. Lyndon Johnson hoped
to suppress antiwar dissent during Vietnam when he spoke of "nervous Nellies"
-- a phrase Dallek likens to the refrain Republicans use today for ridiculing
Democrats who would "cut and run" from Iraq. Richard Nixon, during
Watergate, and Ronald Reagan, during the Iran-Contra scandal, both fired off
a barrage of executive privilege claims in the name of national security in
order to evade scrutiny.
But Dallek says the Bush administration's seizure of power has gone beyond
the pale, including its assault on judicial review. "It has been a central
theme from the start of the administration, and they're pushing it like crazy,"
he says. "Historians will pay a lot of attention to their abuse of separation
of powers -- the expansion of executive power and a return to the notion of
'the imperial presidency.'"
Sen. Pat Leahy of Vermont, the ranking Democrat on the Judiciary Committee,
has been a fierce critic of the Bush administration's consolidation of power,
particularly on the subject of domestic surveillance. "Each day seems to
expose another example of the Bush-Cheney administration's methodic march for
expanded executive power," said Leahy, in a statement to Salon. "The
list keeps getting longer, whether it's this obsessively secret administration
classifying historical documents, or assigning its own interpretations to laws
passed by Congress. Now the administration is adamant about avoiding any type
of judicial review of its domestic warrantless wiretapping program. This administration
has a paranoid aversion to openness and accountability, making it all the more
important to ensure that our system of checks and balances is working as it
For the moment, at least, that burden rests on the shoulders of Judge Walker
in San Francisco. Kroger says the administration's broad efforts to smother
fundamental questions of constitutional law under state secrets claims could
provoke judges to scrutinize how far the doctrine should really reach. He expects
that in all likelihood the question will not be decided short of the Supreme
"The Bush administration is asserting, in essence, that the courts simply
can't play any role here," Kroger says. "That's a radical departure,
and if it's true, a huge part of the government's war on terror is off limits."
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