Closing Our Courts


“We have long made clear that a state of war is not a blank check for the president when it comes to the rights of American citizens.” Justice Sandra Day O’Connor, Hamdi v. Rumsfeld, 2004

“[This] court’s decision gives the government a blank check to shield even its most shameful conduct from any scrutiny or accountability.” ACLU attorney Ben Wizner, after a Virginia federal district court’s dismissal of a case against the CIA’s violating American and international law, Khaled El-Masri v. George Tenet, May 19, 2006. The case was shut down because of the government’s claim of “state secrets.”

With Congress refusing to hold the executive branch accountable for even its clear violation of the law in unleashing the National Security Agency to eavesdrop on us—and also collect all our phone records—only the courts remain to guard the constitutional separation of powers.

As James Banford, the leading authority on the out-of-control NSA and our other intelligence agencies, says:

“You can’t get any oversight or checks or balances. Congress is protecting the White House, and the White House can do whatever it wants.” (Emphasis added.)

But, as for the courts, increasingly the White House—with the full support of the president’s faithful vassal Attorney General Alberto Gonzales—has been compelling judges to dismiss cases that could expose the administration’s misrule of law. By invoking the “state secrets” privilege, the administration ensures that all documents and reports central to the case at hand are excluded—and the case cannot proceed.

For one of a growing number of examples of this gagging of the courts: Late at night on May 26, the alleged Justice Department invoked “state secrets” to shut down the Center for Constitutional Rights case CCR v. Bush, challenging the omnivorous and warrantless domestic surveillance by the NSA.

I’ll let you know if, in this case, Judge Gerald Lynch of the Southern District of New York goes along with the other judges who have agreed to not even review the evidence before dismissing “state secrets” cases.

The government’s weapon of “state secrets” was first unsheathed in a 1953 Supreme Court decision, U.S. v. Reynolds, that gave the administration the authority to prevent the disclosure of any information that would, according to the government, endanger national security.

Since nearly all judges obey, this darkness extends to the press. As Susan Burgess of the Reporters Committee for Freedom of the Press (with which I am affiliated) points out:

“The press is denied a chance to inform the public about the workings of the government, and the public loses its ability to scrutinize the basis for the government’s assertion of the ‘state secrets’ privilege”—let alone “the merits of the parties’ claims.”

So you have a stake in the expanding use of what has become the Bush administration’s favorite means of staying in the shadows of the parallel legal system it keeps on inventing.

In a valuable report, “State Secrets and Executive Power” (
Political Science Quarterly
, Spring 2005), William Weaver and Robert Pallitto note that after the
Reynolds ruling—from 1953 to 1975—there were only four reported cases in which the government used the “state secrets” bludgeon.

There is no exact figure for the increasing vanishing of cases that this administration is deep-sixing because only a small fraction of such cases are reported, since the merits were not decided. It’s estimated that the Bush team is responsible for about 30 percent of the executions by “state secrets” since Reynolds.

But the unmistakable result, as Weaver and Pallitto write, is that “other than the scarce exception, the privilege is invariably fatal” to getting these cases heard.

This is another precedent that the president has set for those of his successors who may also believe, in the endless war on terrorism, that you—their subjects—can’t be trusted to know how the Oval Office is keeping you safe, and free, from enemies who want to destroy, as the administration says, “American values.”

Next week: A federal judge reveals his inner conflicts in shutting down a case whose “state secrets” are already known around the world.

But first, an account of what happened when Congressman Edward Markey (D-Massachusetts), a dauntless protector of the Constitution, wrote on May 15 to Kevin Martin, chair of the Federal Communications Commission, reminding him that the NSA’s collection of millions of our phone records violates Section 222 of the Communications Act of 1934—which “prohibits the disclosure of such information by telecommunications carriers”—and asking the FCC what it intends to do about it.

Kevin Martin’s May 22 reply to Congressman Markey assured him that the FCC “takes very seriously our charge to faithfully implement the nation’s laws.” However, the “classified nature of the NSA’s activities makes us unable to in
vestigate the alleged violations discussed in your letter at this time.”

Martin added that since the government has moved to dismiss a lawsuit involving AT&T’s cooperation with NSA’s harvesting of the citizenry’s phone records—because of “state secrets”—the FCC is bound to be a team player.

Said Markey in response: “We can’t have a situation where the FCC, charged with enforcing the law, won’t even begin an investigation of apparent violations of the law because it predicts the administration will roadblock any investigations citing national security.”

But that is precisely the situation we’re in—not only because the Republican-controlled Congress indeed lets the president do whatever he wants. Where is the resistance of the so-called opposition party? Why haven’t Nancy Pelosi, Harry Reid, and Howard Dean publicly and insistently supported Ed Markey not only in his probe of the NSA and its protector in the Oval Office, but also in his repeated calls for investigations of the CIA’s “rendition,” secret prisons, and standard repertory of torture?

If only I could vote for Ed Markey for president!