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.
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.
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.
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
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.
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
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.
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
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.
itself,” Judge Walker wrote, “leaves little room for defendants’
argument that the state secrets privilege is actually rooted in the
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
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.
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
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.
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.
issues as urgent and important as the state secrets privilege deserve
particularly considered treatment, as Judge King of the Fourth Circuit
“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.”