Political Hay

Secret Mistakes

Eager to discredit the President, critics rely on discredited data.

By 6.5.06

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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.

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About the Author

Adam J. White is an attorney living in Arlington, Virginia.