NSA says it’s too secret to be sued

Gail Gibson

DETROIT — A courtroom challenge to the National Security Agency’s domestic surveillance program would expose sensitive state secrets and should be thrown out, government lawyers told a federal judge yesterday.

In making that sweeping assertion, lawyers employed the state secrets doctrine, an obscure tool that has been used by the Bush administration in 22 other instances - more than any other presidency - to squelch cases touching on intelligence practices.

And it is virtually always a winning strategy, say legal scholars and attorneys who handle national security cases.

In May, the risk of exposing state secrets led a federal judge in Virginia to dismiss a suit against the government brought by a German abducted by a CIA renditions team, held for several months in Afghanistan, then left stranded in Albania.

In the past year, government lawyers also have used the state secrets privilege to defeat a high-profile whistleblower case against the FBI and a racial discrimination suit against the CIA and to seek dismissals in a string of recent cases challenging some of the government’s surveillance methods in its anti-terror campaign.

“In a case where the government says the case cannot be litigated without exposing state secrets, I have not seen the government lose a case like that,” said Meredith Fuchs, general counsel for the National Security Archives at George Washington University.

According to research by Fuchs, lawyers in the Bush administration have invoked the state secrets privilege in at least 23 cases since 2000, more than any previous administration since the privilege was crafted in a 1953 Supreme Court case. In each case where there has been a final decision, the government has won.

“I think it’s interesting now that you have this court in Detroit focusing on state secrets and seeming like the judge there does not want to automatically accept the government’s claims,” she said.

“This is hard for judges. … But my impression is the judges are considering, ‘What are the alternatives?’ This is a big change, and I think it’s because they are aware that this kind of privilege takes the court out of the picture altogether.”
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