Security Archive FOIA page
Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy,"
Administrative Law Review, Vol. 58, No. 1 (Winter 2006).
Fuchs and G. Gregg Webb, "Greasing
the Wheels of Justice: Independent Experts in National Security
Cases," American Bar Association, National Security
Law Report, Vol. 28, No. 4 (November 2006).
Lie Behind the Secrets," Los Angeles Times, May
DC, May 3, 2007 - The National Security
Archive and several other public interest organizations argued
yesterday, in an amicus
curiae brief filed in the 9th Circuit Court of Appeals,
that courts should not simply defer to the government's assertion
of the state secrets privilege but rather must independently
evaluate the claim that a case must be dismissed to protect
national security. In particular, courts must determine whether
the material at issue is actually secret, whether it is necessary
to the case, and whether the potential harm from disclosure
justifies dismissing the case.
Amici filed the brief in support of parties challenging the
National Security Agency's warrantless wiretapping program.
The government is appealing a ruling
by Judge Vaughn Walker of the Northern District of California
last year denying the government's motion to dismiss on state
secrets grounds a case originally brought by various plaintiffs
against AT&T and other telecom companies for their alleged
role in the wiretapping. Amici argue that Judge Walker properly
rejected the government's invocation of the privilege after
conducting an independent assessment of the state secrets claim-including
by reviewing classified information in camera -- and
finding that the program in question is "hardly a secret."
Hepting v. United States, 439 F. Supp. 2d 974, 994 (N.D.
National Security Archive general counsel Meredith Fuchs commented:
"We want judges to remember that they have an independent
role in assessing state secrets privilege claims. Important
cases shouldn't be dismissed lightly."
Even if a court were to determine that a case involved a real
secret, amici further argued, the court must weigh the potential
harm from disclosure against the public interest in permitting
the case to proceed: "The perilous shield of state secrecy
should be given judicial imprimatur only when a court balances
the national security risks of disclosure against the harm of
closing the courthouse doors to allegedly unconstitutional action."
This approach is necessary to prevent the government from using
a state secrets claim to unilaterally remove government activities
from judicial scrutiny for improper reasons, including to conceal
Other amici on the brief include: the Project
on Government Oversight (POGO), the Project on Government
Secrecy of the Federation
of American Scientists, Public
Citizen, and the Rutherford
Institute. Pro bono legal assistance in the drafting of
the brief was provided by members of the National Litigation
Project of the Allard K. Lowenstein International Human Rights
Clinic at Yale Law School, including Jonathan M. Freiman and
four Yale Law School students, Edward Diskant, Nicole Hallett,
Daniel Noble, and Patrick Christopher Toomey.