Challenges Brew Over 'State Secrets'
Monday, November 26, 2007; 6:24 PM
WASHINGTON -- In federal courts and on Capitol Hill, challenges are brewing to a key legal strategy President Bush is using to protect a secret surveillance program that monitors phone calls and e-mails inside the United States.
Under grilling from lawmakers and attack by lawsuits alleging Bush authorized the illegal wiretapping of Americans, the White House has invoked a legal defense known as the "state secrets" doctrine _ a claim that the president has inherent and unchecked power to shield national security information from disclosure, either to plaintiffs in court or to congressional overseers.
The principle was established a half-century ago when, ruling in a wrongful-death case brought by the widows of civilians killed in a military plane crash, the Supreme Court upheld the Air Force's refusal to provide an accident report to the plaintiffs. The government contended releasing the document would compromise information about a secret mission and intelligence equipment.
Sen. Arlen Specter of Pennsylvania, the Judiciary Committee's senior Republican, believes the White House has gone too far in invoking state secrets to halt civil lawsuits.
"We have the authority to define the state secrets doctrine," Specter says. "I don't think that the simple assertion of state secrets ought to be the end of the matter."
Specter, Sen. Edward Kennedy, D-Mass., and others are working on legislation that would direct federal judges to review the president's state secrets claims and allow cases with merit to go forward.
Practices among judges vary. Some accept state secrets claims outright, dismissing cases on the government's word. Others read the privileged information and decide for themselves, but almost invariably side with the government, according to legal scholars.
The draft legislation is modeled on procedures used in criminal cases that involve classified information. The Classified Information Protection Act lets judges review classified information a criminal defendant wants to use in his defense, but which could compromise national security if it were released publicly. The law allows the court to delete classified passages, substitute summaries of the information, or substitute a statement of facts that the classified information would prove.
The measure could become part of the Senate's new eavesdropping law, expected to be voted on in early December, the aides said.
In another challenge to Bush's position on classified material, a federal judge in Virginia last week ordered the government to give trial prosecutors, defense lawyers and her clerk security clearances to review classified material in a terrorism case. Defense lawyers say the material will show the government failed to turn over evidence obtained by illegally monitoring their client's communications, and they want a new trial. The government says the information is protected by the state secrets privilege.
And in an Oregon case, a U.S. district court judge is set to decide whether the 1978 Foreign Intelligence Surveillance Act trumps presidential claims of secrecy.
Adopted after the Watergate scandal, FISA dictates when the government must get permission from a secret court to monitor electronic communications inside the United States. It also allows people who believe they were spied on illegally to sue the government for damages and to request materials that would prove the surveillance. If the attorney general says disclosure would harm national security, a district court may review the classified materials privately to determine if the surveillance was illegal.