If I recall correctly, the files of the original case were recently declassified, the government’s assertion was without a doubt a blatant coverup; the secrets argument had no merit in that case.

(Sorry, Stephen Colbert, just had to use that one here.)

are you not endangering National Security by bringing this to our attention?

Get an advocate.

‘First recognized by the Supreme Court 53 years ago in U.S. vs. Reynolds, the “state secrets” privilege bars disclosure of information in court proceedings when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

The privilege has been used most often by officials in the executive branch of government, said William G. Weaver, an attorney and a political science professor at the University of Texas, El Paso, who has co-written a scholarly article on the subject.

“It is the most powerful privilege available to the president,” Weaver said. “If it is properly invoked, it wins every single time.” Before the Sept. 11 attacks, Weaver said, government lawyers generally used the privilege at the instigation of mid-level officials who did not want a program’s operational details revealed.

In recent years, though, it has become “a top-down enterprise,” he said. “The privilege has been transformed into a political device to protect the president from embarrassment.”

[....]

If the plaintiffs overcome the government’s argument, it will be highly unusual. Justice Department attorneys almost always prevail when they invoke the “state secrets” privilege, even when judges acknowledge a plaintiff raises serious issues. Last month, U.S. District Judge T.S. Ellis III in Alexandria, Va., dismissed a lawsuit filed by a German citizen who alleged he was kidnapped and beaten by the CIA.

Khaled El-Masri sued former CIA Director George J. Tenet, other officials and three private companies. The suit alleged that Tenet violated U.S. and international human rights laws by permitting agents to kidnap El-Masri in Macedonia in 2003, beat him, drug him and transport him to a secret CIA prison in Afghanistan. Five months later, according to the suit, El-Masri was released at night in Albania without being charged with a crime.

Ellis said that “if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected … must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” Nonetheless, Ellis sided with government attorneys, saying that if the case went forward it “would present a grave risk of injury to national security.” “El-Masri’s private interests must give way to the national interest,” he ruled. “In times of war,” he said, “our country, chiefly through the executive branch, must often take exceptional steps to thwart the enemy.”’

I find all of this rather intriguing in light of the Pentagon Papers case, in which, similar issues were raised: cf. David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley, CA: University of California Press, 1996). That story is further illuminated by Daniel Ellberg’s Secrets: A Memoir of Vietnam and the Pentagon Papers (New York: Viking/Penguin, 2002).

Even portions of the government’s brief that were said to demonstrate why further information about the program cannot be disclosed have not been filed in court. Instead, the government “lodged” the brief and other classified papers at the Justice Department in Washington, inviting Judge Taylor to make arrangements to see them. At today’s hearing, she shook her head no when Mr. Coppolino asked her whether she had “had a chance to review our classified submission.”

The plaintiffs can’t see the brief and its super-secret arguments (& thus must argue against an invisible adversary). Nor can the judge, unless she flies to D.C. to visit the Chamber of Secrets.

Me, I would be holding the feds in contempt so fast, it would be a secret to them how they landed on their asses so fast.