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Obama Administration Weighs in on State Secrets, Raising Concern on the Left

by Adam Liptak

A Supreme Court filing from the Obama administration last month has set off alarm bells on the left.

The filing was a friend-of-the-court brief, and it mostly dealt with an excruciatingly technical question about the attorney-client privilege. But its last five pages were about the state secrets privilege, which was not at issue in the case. That privilege, a favorite tool of the Bush administration, allows the government to shut down lawsuits by invoking national security.

The Obama administration’s brief argued, though no one had asked, that the state secrets privilege was rooted in the Constitution.

The federal government files friend-of-the-court briefs in the Supreme Court all the time, and it is not unusual for it to alert the court to related issues, usually to make sure that the court’s ruling is no broader than it needs to be.

But the filing has raised eyebrows and suspicions among liberals already disappointed that the Obama administration has not rejected a number of legal doctrines associated with the Bush administration.

Jon B. Eisenberg, a lawyer for an Islamic charity in Oregon, said the filing reflected “the good old Bush-Cheney inherent presidential power theory.” Mr. Eisenberg said he suspected that the administration was hoping to use the attorney-client case to invite the Supreme Court to say something helpful to it about state secrets.

Mathew A. Miller, a Justice Department spokesman, said there was no reason for concern.

“The brief says only that the state secrets privilege, along with other governmental privileges, has a constitutional basis,” Mr. Miller said, “which is a position that has been taken by the Department of Justice for many decades under administrations of both parties.”

On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege. In courtrooms, however, there has been little evidence of a new approach.

The administration’s brief said the government should be allowed to appeal rulings rejecting the state secrets privilege right away, rather than after the whole case is decided. Rulings concerning the attorney-client privilege, on the other hand, the brief said, should not be subject to immediate appeal.

The differing treatments are warranted, the brief argued, because the state secrets privilege is grounded in the Constitution. But that point is controversial, and the brief’s account of the relevant decisions was incomplete.

A federal judge in San Francisco, for instance, last year rejected a version of the constitutional argument in a case brought by Mr. Eisenberg’s client, Al-Haramain Islamic Foundation. The foundation said it had been subjected to illegal surveillance in the Bush years. Both the Bush and Obama administrations have argued that the charity’s suit must be dismissed under the state secrets privilege.

This is where the issue of the pedigree of the privilege really matters. If the privilege is an ordinary common-law rule of evidence, Congress is probably free to alter it. If it is required by the Constitution, things get more complicated.

The judge in San Francisco, Vaughn R. Walker, ruled that Congress had indeed overridden the state secrets privilege when it enacted the Foreign Intelligence Surveillance Act of 1978. The judge said that by setting up a secret court to consider requests for intelligence surveillance, and by setting up other domestic regulations of foreign intelligence surveillance, “Congress intended for the executive branch to relinquish its near-total control over whether the fact of unlawful surveillance could be protected as a secret.”

The government’s recent brief cited the leading Supreme Court decision on state secrets, United States v. Reynolds in 1953, but it said nothing about Judge Walker’s reading of it.

“Reynolds itself,” Judge Walker wrote, “leaves little room for defendants’ argument that the state secrets privilege is actually rooted in the Constitution.”

The Reynolds case concerned an Air Force accident report. The government refused to turn it over in an injury lawsuit, saying that disclosure of the report would endanger national security by revealing military secrets.

When the report was finally released in 1996, it contained no secrets, but it did show that the deaths of nine men in the crash of a B-29 bomber had been caused by the Air Force’s negligence.

Thus, the first case in which the Supreme Court recognized the state secrets privilege illustrated how problematic it can be. By giving the executive branch close to unilateral power to have lawsuits dismissed on national security grounds, the privilege can become a way to conceal government misconduct.

The recent brief from the Obama administration cited just one decision directly invoking the Constitution as the basis for the state secrets privilege. Other courts have said the state secrets privilege is rooted in the common law.

The decision cited in the brief dismissed a lawsuit from a German citizen, Khaled el-Masri, who said he had been abducted and abused by the Central Intelligence Agency. A report from the Council of Europe substantially confirmed Mr. Masri’s claims.

The state secrets privilege, Judge Robert B. King wrote in 2007 for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit in Mr. Masri’s case, “performs a function of constitutional significance.”

Mr. Miller, the Justice Department spokesman, cautioned against reading too much into the recent filing. “The brief says nothing about either the scope of the privilege or the ability of Congress to legislate in the area,” Mr. Miller said.

Experts in legal ethics said the solicitor general, who represents the government in the Supreme Court, was not required to cite decisions from lower courts cutting against its position.

But issues as urgent and important as the state secrets privilege deserve particularly considered treatment, as Judge King of the Fourth Circuit recognized.

“This inquiry is a difficult one,” he wrote, “for it pits the judiciary’s search for truth against the executive’s duty to maintain the nation’s security.”
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