State-secret overreach

For too long, judges have allowed the government to hide mistakes behind national security.
By Barry Siegel
LA Times

On Aug. 15, before an overflow crowd at the federal courthouse at 7th and Mission in San Francisco, three judges from the U.S. 9th Circuit Court of Appeals listened to lawyers argue whether the once-obscure "state secrets privilege" gives the government an absolute right to withhold documents, bury evidence and block lawsuits.

The government claimed the privilege in connection with two cases challenging the Bush administration's domestic surveillance programs, including its controversial warrantless wiretapping operation. Deputy Solicitor General Gregory Garre, arguing for the government, maintained that the cases should be dismissed instantly, no questions asked, because a trial would endanger national security. Presenting any evidence in a courtroom, he said, would put the country at "exceptionally grave harm."

When it comes to national security, Garre said, judges must give the executive branch the "utmost deference."

After listening to such claims for a while, the senior judge on the appellate panel, Harry Pregerson, asked Garre whether the state secrets privilege meant that the courts must simply "rubber stamp" the decisions of the executive. "The bottom line here is the government declares something is a state secret, that's the end of it," Pregerson said. "The king can do no wrong."

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