A football coach once said that if you make a big play, keep calling it until it stops working. I don’t know enough about football to say whether it’s a great idea, an apocryphal story or a crappy coach, but at least somebody listened:
The Bush administration asked federal judges in New York and Michigan to dismiss a pair of lawsuits filed over the National Security Agency’s domestic eavesdropping program, saying litigation would jeopardize state secrets.
In legal papers filed late Friday, Justice Department lawyers said it would be impossible to defend the legality of the spying program without disclosing classified information that could be of value to suspected terrorists.
National Intelligence Director John Negroponte invoked the state secrets privilege on behalf of the administration, writing that disclosure of such information would cause “exceptionally grave damage” to national security.
The administration laid out some of its supporting arguments in classified memoranda that were filed under seal.
Apparently all the government has to do is invoke the term ‘State Secrets’ and the lawsuit hits in impassable brick wall. Boom, gone! Sounds like a handy tool that less-than-scrupulous administrations might be tempted to abuse. The problem is, how could you tell? One giveaway might be if the rate of invoking the priviledge went up by quite a lot relative to normal usage (via Drum):
When the government claims the “state secrets privilege,” the courts tend to look no further, and the cases are dismissed. It was invoked only four times in the first 23 years after the U.S. Supreme Court created the privilege in 1953, but now the government is claiming the privilege to dismiss lawsuits at a rate of more than three a year. The Justice Department describes this tactic as an “absolute privilege” — in effect, a neutron bomb that leaves no plaintiff standing.
So yes, the use of “State Secrets” has gone up by a hell of a lot, and assuming that the NSA litigation is far from over this could be the Secret-est year yet. If only I had the same tool when/if the IRS guy shows up to audit me. So you say that I failed to declare a second income as a tech consultant? Sorry, State Secrets. Bye now, thanks for stopping by.
Let’s pose a question for you constitutional scholars out there. Picture a hypothetical scenario where the president beat the crap out of an eight-year-old and then stole his bike, sans witnesses. It seems like he can either answer a bunch of embarrassing questions, or else just classify everything about the encounter and then invoke State Secrets when the kid’s parents sue. Boom, gone, as far as I can tell it might as well have never happened.
Of course most of the investigations right now have nothing to do with beating up an eight-year-old. Mainly they involve serial violations of Americans’ constitutional rights, which on the balance seems just as bad. Quite possibly these investigations don’t actually pose much threat to national security but they do pose an obvious threat to the administration’s job security. One way or the other we only have the word of the people under investigation to go on. Right, question. Obviously the administration would love to throw up this neutron-bomb roadblock whenever they feel like it. Can they? Does any third party ever judge whether a State Secrets invocation actually has merit? As far as I can tell the answer is no.