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Archive and openness advocates urge court scrutiny of government secrecy claims;
Amicus brief argues against deference in warrantless wiretapping case

For more information contact:
Meredith Fuchs - 202/994-7000

National Security Archive FOIA page

Related publications

Meredith Fuchs, "Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy," Administrative Law Review, Vol. 58, No. 1 (Winter 2006).

Meredith 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).

Tom Blanton, "The Lie Behind the Secrets," Los Angeles Times, May 21, 2006.

Washington 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. Cal. 2006).

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 constitutional violations.

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.

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