The Baltimore Sun | July 11, 2006
By 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."

Attorneys for the American Civil Liberties Union and other plaintiffs, including the Michigan chapter of the Council on American-Islamic Relations, say enough information already is known about the NSA surveillance program for a judge to order it stopped. But Justice Department lawyer Anthony J. Coppolino said the only option is to shut down the lawsuit at its start.

The NSA program is lawful, Coppolino told a judge here yesterday, but proving that in court would require the public disclosure of important national security information. Even the basic question - whether various groups that have sued the Maryland-based spy agency are valid plaintiffs - can't be resolved, Coppolino said, because that would mean disclosing whom the program has, or has not, targeted.

"We're confident the president's actions were clearly within his authority and within the law, but the evidence needed to [prove] that in this case simply is not available without revealing state secrets," Coppolino told U.S. District Judge Anna Diggs Taylor, who did not issue an immediate ruling. "We see no credible alternative to dismissal."

The ACLU brought the Detroit case in January on behalf of scholars, lawyers, journalists and nonprofit groups who claimed that the possibility of government eavesdropping had complicated their efforts to communicate with some sources and clients overseas.

Similar lawsuits are pending in New York and Oregon, but in Detroit the legal challenge is playing out against the backdrop of southeastern Michigan, which has the largest Arab-American population in the country.

Each of the lawsuits challenges the NSA program as a violation of the Foreign Intelligence Surveillance Act, a 1978 law that prohibits surveillance of individuals inside the United States without a warrant.

ACLU Associate Legal Director Ann Beeson argued yesterday that the government was trying to avoid court scrutiny of the program by invoking the state secrets privilege, using the doctrine "as a sword instead of a shield."

"There are no facts which allow the executive branch to ignore the law and to violate it," Beeson said outside of court.

The battle against the state secrets privilege almost always is a tough one, said Mark S. Zaid, a Washington lawyer who specializes in lawsuits against some of the government's most secretive agencies. Among his state secrets cases, only once did a judge side against the government, and that decision was reversed later by another court.

"There are nuances that would seem to be available for debate - outside of how the NSA was conducting its surveillance and who it was choosing, I can't imagine that they're going to be successful on that," Zaid said in an interview last week. He added: "I mean, I work with the ACLU all the time, but I'm far more conservative on this issue than they are, and I would frankly say the NSA program is off limits."

Congress could adopt changes to give lawsuits that challenge sensitive intelligence programs a better chance at survival, he said, or the Supreme Court could step in to clarify when and how the privilege should be used.

In a filing with the Detroit court, Justice Department lawyers pointed to history in defending the NSA surveillance program, noting President Woodrow Wilson's authorization for government agencies to intercept telephone, telegraph and cable communications during World War I and President Franklin D., Roosevelt approving the interception of "all telecommunications traffic" after the Japanese attack on Pearl Harbor.

Robert Chesney, a Wake Forest University law professor who has studied the state secrets privilege, said there also is historical precedent for trying to protect state secrets from public airing. Before the state secret privilege was defined in 1953, administrations from both parties would invoke the so-called "political question doctrine" as a signal for the courts to steer clear of sensitive intelligence or military issues.