We Could Tell You Why It’s Legal But Then We’d Have to Kill You

by Henry Farrell on June 12, 2006

One of my most-disliked cliches is the term Kafkaesque – most things that are described as being so really aren’t. But it’s hard not to think of _The Trial_ when reading “this”:http://www.nytimes.com/2006/06/12/washington/12cnd-nsa.html?ex=1307764800&en=a9081b7ddf6e13a1&ei=5090&partner=rssuserland&emc=rss.

bq. A National Security Agency program that listens in on international communications involving people in the United States is both vital to national security and permitted by the Constitution, a government lawyer told a judge here today in the first major court argument on the program. But, the lawyer went on, addressing Judge Anna Diggs Taylor of the Federal District Court, “the evidence we need to demonstrate to you that it lawful cannot be disclosed without that process itself causing grave harm to United States national security.” The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege.



nnyhav 06.12.06 at 4:34 pm

No, it’s hard not to think of Catch-22.


abb1 06.12.06 at 4:36 pm

like a freakin dog


P O'Neill 06.12.06 at 4:44 pm

Likewise, they seem to be determined to squelch all those overwrought uses of Orwellian by showing what it really means: having the Commander-in-Chief lock up people indefinitely without trial, and then when they commit suicide, complain about “asymmetric warfare.”


mpowell 06.12.06 at 5:27 pm

How could any judge accept that kind of argument? I really do find it hard to believe that anyone would buy that.


Anderson 06.12.06 at 5:28 pm

You left out the best part–the secret brief!

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.


Matt 06.12.06 at 5:47 pm

Many uses of the “state secrets” provision took place in immigration cases at various points- many famous ones in the red scare of the early 50’s. In one particular case a guy who was stateless was told by the government that he should just consider himself lucky they didn’t put him in a boat and push him off of Elis Island. In this and similar cases the government argued, and the court accepted, that state security demanded that not even the judge in a private viewing see the evidence in question. Eventually political action settled the case and it turned out that in fact there was no such evidence. That itself might have been the secret, as far as we know. I’d not be surprised if something like this was the case here, too.


Patrick S. O'Donnell 06.12.06 at 6:37 pm

Some background from an article in today’s LA Times by Henry Weinstein:

‘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).


Simon 06.12.06 at 7:59 pm

Sounds like “The Trial” to me. I’m suprised the people working for the government aren’t as of yet referring to those under surveillance by mysterious single initials.


SteveG 06.12.06 at 9:56 pm

So I shouldn’t be calling my cousin Josef K who recently moved to the Middle East?


abb1 06.13.06 at 2:21 am

So I shouldn’t be calling my cousin Josef K who recently moved to the Middle East?

Get an advocate.


Brendan 06.13.06 at 3:31 am


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


goatchowder 06.13.06 at 4:24 am

There’s a *reason* these things are secret….. they’re super-depressing.

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


TheDeadlyShoe 06.13.06 at 6:16 am

It’s been used for partisan coverups in recent years?

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.


Jon Swift 06.13.06 at 1:15 pm

Some things are Kafkaesque in a good way.

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