It’s no secret: Critics of the Bush administration’s prosecution
of the war on terror have grown increasingly livid with each leaked
report of alleged civil liberties abuses. Less known, but no less
true, is that the latest round of criticism has relied on
discredited data.
Last December’s revelations that the National Security Agency
monitored international phone calls involving persons in the U.S.
sent critics into a frenzy. Their passions were yet further
inflamed on May 26, when the Bush administration invoked the State
Secrets Privilege in an effort to end lawsuits filed by the Center
for Constitutional Rights (CCR) and the ACLU, who had requested
that courts order that the surveillance programs be ceased and
disclosed.
The State Secrets Privilege is as old as the Republic itself.
While it attained its most recent form in Reynolds v. U.S. (1953), it was noted by Chief
Justice Marshall in the 1807 treason trial of Aaron Burr. It was
used to quash post-Civil War litigation by an alleged Union spy in
Totten v. U.S. (1875). In 1941, Attorney General
Robert Jackson wrote on behalf of the Roosevelt administration a
memorandum detailing the privilege’s deep roots in federal law and
tradition. (Years later, however, Supreme Court Justice Jackson
dissented in Reynolds, opposing the privilege.)
That the State Secrets Privilege is neither (as critics suggest) novel, nor foreign, nor “undemocratic”
is demonstrated easily enough. But critics have
succeeded in promoting yet another misconception: that the Bush
administration has invoked the privilege abusively, significantly
more frequently than did its predecessors.
This line of criticism was espoused by the ACLU’s Harvey
Grossman, who told the Chicago Tribune that
“’[a]nything that touches on national security, we expect to see an
assertion of the privilege.” Attorney Henry Lanman gave this
criticism lengthy treatment in Slate.
Lanman cited a release by the Reporters Committee for the Freedom
of the Press: “The [RCFP] reported that while the government
asserted the privilege approximately 55 times in total between 1954
(the privilege was first recognized in 1953) and 2001, it’s
asserted it 23 times in the four years after Sept. 11. For an
administration as obsessed with secrecy as this one is, the
privilege is simply proving to be too powerful a tool to pass
up” (emphasis added).
Unfortunately for Lanman and others (including the Washington Post and New York Times, as well as the popular
legal news website, Jurist) who cite that data as evidence
of the Bush administration’s abuses, those numbers are pure
fiction. As the RCFP noted in a correction to its press release, it “incorrectly
reported that the government invoked the state secrets privilege in
23 cases since 2001. The figure came from the 2005 Secrecy Report
Card published by OpenTheGovernment.org. The privilege was actually
invoked seven times from 2001 to 2005, according to the corrected
2005 report card, which is not an increase from previous decades”
(emphasis added).
In other words, contrary to the suggestion of Mr. Grossman, the
Bush administration appears to be less able to “pass up” the
privilege than were its predecessors.
Both the incorrect and correct versions of the OpenTheGovernment.org reports
are still available online. The incorrect report eagerly asserted
that, “[s]ince 2001, the privilege has reportedly been invoked at
least 23 times, or a stunning rate of nearly 6 times each year).
Put another way, the state secrets privilege is now used 33 times
more frequently than it was during the height of the Cold War.”
The corrected version frankly admits that, “[b]etween 1977 and
2001, administrations invoked the privilege 51 reported times (a
rate of just over 2 times per year). Since 2001, the state
secrets privilege has declined slightly. Reportedly the
privilege has been invoked at least 7 times, or a rate of 1.75 each
year” (emphasis added).
But even setting aside the critics’ faulty data, this line of
criticism fails, because it refuses to acknowledge relevant
context. If the Bush administration were invoking the State Secrets
Privilege more since 2001 than administrations had invoked it in
previous years, the increase would be eminently justifiable. Since
2001, the nation has been at war, and heightened protection of
state secrets is necessary and proper.
More importantly, the Global War on Terror differs from
preceding wars in that never before have war critics like the CCR
and ACLU been so vigorous in attempting to thwart the war effort in
court. The CCR boasts on its website that it is a party to nine of sixteen
major anti-GWOT lawsuits. The ACLU litigates virtually
every aspect of the Bush administration’s prosecution of the
war — it’s hard to conceive of a national-security program that
wouldn’t quickly find itself on the wrong end of an ACLU
lawsuit. And these groups are hardly alone in their efforts.
Increased Bush administration reliance on the State Secrets
Privilege may owe not to the efforts of the administration so much
as those of its critics.
As military legal expert Phil Carter noted last
year in Slate, when we open civilian courthouse doors too
wide to those challenging tactics employed in the war on terror, we
increase the incentive for our enemies to conduct “lawfare,” the “strategy of using or misusing law as a
substitute for traditional military means to achieve military
objectives.”
Now, this does not mean that such litigation-happy groups as the
CCR and ACLU are intentionally furthering the cause of the nation’s
enemies. Of course they’re not; they file their lawsuits out of
commitment to certain legal principles, and commitment to the rule
of law is never dishonorable, even when it is a commitment to the
rule of an erroneous conception of the law.
Nonetheless, any Commander in Chief would calibrate his response
to increased litigation by reference to the threat posed by enemies
who would “free-ride” on the work of advocacy groups, for the
precedents created by advocacy groups are available to all
subsequent litigants, even the nation’s enemies. Aware of that
threat, it would be ludicrous for the Bush administration not to
adjust its defensive strategy when plaintiffs adjust their
offensive strategy; if plaintiffs increase their efforts to thwart
the national defense strategy in court, the government will invoke
the State Secrets Privilege in more cases. For critics to complain
that the corresponding increase in use of the privilege is
inherently illegitimate doesn’t just promote lawfare — it promotes
asymmetrical lawfare, wherein the nation’s enemies can
change their tactics while the government stands pat.
Moreover, if critics succeed in preventing assertion of the
privilege, they’ll succeed in convincing the government to rely on
other established privileges or immunities, or in further
preventing leaks of government programs, or in relying on other
legal tactics. Mutatis mutandis.
Last year, then-National Review Online contributor (and
current counsel to the Vice President) Shannen Coffin summarized the privilege succinctly: “It’s an
extremely important privilege and one the government takes
extremely seriously.” While it must not be wielded haphazardly,
when used thoughtfully and carefully it stands as a major
protection against those who would for whatever reason turn the
courts into their front line in the Global War on the Global War on
Terror.
