Reconciling The State Secrets Doctrine with Due Process in Terrorism Related Cases By Victor Comras

Reconciling The State Secrets Doctrine with Due Process in Terrorism Related Cases
By Victor Comras

A few weeks ago I wrote a short piece for Jurist commenting on US District Court Chief Judge Vaughn Walker's recent ruling in the Al-Haramain Oregon NSA wiretapping case. That ruling held that the court be allowed to review classified information relevant to the case in order to determine whether its availability for review by counsel is critical to due process and fairness in the proceedings. If so, Judge Walker ruled, opposing counsel must be afforded a conditional opportunity to view such evidence (see below).

This ruling represents a significant departure from previous holdings, and has proved quite upsetting to the affected government agencies. The Justice Department immediately appealed Walker’s ruling arguing that the government, not the courts, is best able to determine whether or not divulging classified information would pose a reasonable danger to national security. To their evident surprise the Ninth Circuit Court of Appeals upheld Walker’s ruling. Justice lawyers have now again asked that Judge Walker reconsider the order, and have indicated that an appeal to the U.S. Supreme Court is quite likely.

The procedures outlined by Judge Walker’s order require that the Justice Department propose to the court arrangements to segregate and secure relevant classified information which the court could then review ex parte to determine whether or not the information should be deemed critical to due process and fairness in the case. If so, one or a few of Al Haramain’s attorneys would be granted conditional access to view the information after they first obtained the requisite security clearances. For its part, the Justice Department was ordered to facilitate such clearances provided that the attorneys otherwise meet all other security clearance requirements. While this clearance process is reportedly moving forward, the Justice Department has so far refused to present to the court the procedures requested.

The Al Haramain case is among some 40 different lawsuits challenging NSA and the various telephone companies that cooperated with the wiretapping program. These cases have all been consolidated and assigned to Judge Walker. Several of the cases include challenges to the legislation passed last year by Congress that would grant immunity to the telephone companies for their cooperation in the program.

Last week the Justice Department filed new motions with Judge Walker in one of the cases, Jewel v NSA, that alleges that NSA ran illegal taps on their calls. While maintaining that the NSA program only targeted those “reasonably believed to be associated with al Qaeda or an affiliated terrorist organization,” the Justice Department reasserted its “state secret ” claim, arguing again that disclosing the criteria actually used to determine which phone conversations to target would involve "disclosure of highly classified NSA intelligence sources and methods." Since individual customers would otherwise be unable to show that their messages were the ones intercepted, they could not have any substantive grounds on which to pursue their lawsuits.

The “state secret” doctrine is also front and center in another civil action case against a Boeing subsidiary alleged to have transported five terrorism suspects to countries where they were tortured.

President Obama campaigned on a pledge to bring greater transparency to government actions related to the war on terrorism. He has already scrapped several controversial Bush Administration “war on terrorism” practices, such as trials by military tribunals and waterboarding, and he has ordered the closing of Guantanamo. But, the new administration has shown greater caution in domestic cases involving agency regulations pursuant to IEEPA, FISA and the Patriot Act. Many of these cases have raised important 4th and 5th Amendment concerns. After 9/11 American agencies were given broad new powers to monitor daily American activities, and to incarcerate, designate and freeze the assets of those suspected of financing or engaging in terrorism. U.S. Federal courts were reticent to test these measures against traditional constitutional standards, and left the Bush Administration considerable leeway when it came to implementing them.

Presidential Candidate Obama’s made a point of criticizing the Bush Administration’s frequent use of the State Secrets Doctrine. For example his candidate website contained the following prominent Bullet:

Secrecy Dominates Government Actions: The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court.”

Given the increasingly important role that classified information is playing with regards to regulatory actions, and the increasing concerns being voiced with regard to protecting 4th and 5th constitutional rights, it would make sense to build into the system some possibility for classified information to be considered without jeopardizing sources and methods. Perhaps some thought should be given to the establishment of special new Federal Bar of Attorneys pre-cleared and enabled to be available as co-counsel in cases involving (requiring) some access to classified information. That would put such special defense counsel on equal footing with many of their prosecuting attorney brethren who already possess such clearances. After all, both are already equally considered to be duly appointed officers of the court. The burden would be on attorneys applying to membership to such a special Federal Bar not only to demonstrate their suitability for such clearances, but to front some of the costs that the clearance process regularly entails. These costs could then be passed on in the course of the usual fees charged to clients.


April 7, 2009 08:46 PM Link http://counterterrorismblog.org/2009/04/reconciling_the_state_secrets.php