State Secrets

Amid all the news items last week, I wanted to flag this brilliant article in the New Yorker by Patrick Radden Keefe on the al-Haramain case and the “state secrets” privilege. Keefe describes the way the case unfolded—starting with the government’s inadvertent disclosure of the fact that it was using its super-secret NSA surveillance program to eavesdrop on conversations between an alleged terrorist charity and its lawyers.

The al-Haramain foundation brought suit in federal court over the NSA surveillance program and the ways that program violated al-Haramain’s constitutional rights. So did many other plaintiffs, but al-Haramain was different because it had actual documentary proof of the fact that it had been surveilled. To get this challenge dismissed, the government deployed one of the most potent legal weapons in its arsenal: the ” state secrets ” privilege. Often described as the neutron bomb of litigation, the government invokes this privilege when it feels that continued litigation will threaten national security.

Justice Department lawyers asserted the privilege in this case, but there was a hiccup: The federal judge hearing the case didn’t want to summarily dismiss it. The government appealed to the 9th Circuit, which issued a somewhat disjointed opinion last fall excluding the secret proof of surveillance but allowing the case to proceed.

More than 40 cases are waiting in the 9th Circuit to be resolved, either at the district court or appellate level. To date, the Supreme Court has turned down appeals involving the state secrets privilege, but it’s not clear how long it can continue to do so given the monumental constitutional issues involved.