The Bush code of secrecy

The Bush code of secrecy
How the White House is covering up CIA abductions, brutal interrogations and spying on Americans.
By Mark Follman
Pages 1 2

June 23, 2006 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, 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 battling terrorists.


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 president himself.

Next page: Cheney's plans to bury a legacy of Vietnam and Watergate -- and seize more presidential power