Judge Walker’s decision in the NSA surveillance case reflects a growing distrust in the federal judiciary of the Bush administration’s expansion of executive power
By Peter Scheer
Three cheers for Vaughn Walker.
Vaughn who? you ask. Until very recently, he was also unknown to lawyers and policy makers in the White House. But on July 20 the unassuming chief judge of the federal district court in San Francisco dropped a judicial bomb.
In a suit against AT&T for alleged collaboration in the National Security Agency’s warrantless wiretapping and other surveillance programs, Judge Walker rejected the Justice Department’s argument that the case had to be dismissed because continued litigation would inevitably reveal vital national security secrets.
The feds had invoked the “state secrets” privilege, a defense created by the Supreme Court in 1953 against a backdrop of Cold War military secrecy. Although rarely used in the following 45 years, the state secrets privilege has become a favorite of defense and intelligence agencies since 9/11—and was used most recently to derail a suit against the CIA by a victim (by all accounts, innocent) of the agency’s “extraordinary rendition” program.
The state secrets privilege is the mother of all government privileges because it typically requires, not merely the exclusion of certain evidence, but the outright dismissal of the lawsuit—even if the plaintiff’s claims have merit. It’s as though the government is saying, in response to the plaintiff’s legal complaint: Yes, you’re charges are all correct, but you can’t prove them without disclosing classified information (or forcing us to do so in our defense), so you lose.
Justice Department lawyers appearing before Judge Walker in the AT&T case had reason to be optimistic. The feds’ success rate in state secrets cases is nearly 100%. Judges are understandably reluctant to second-guess the judgments of government intelligence experts—particularly if, as is so often the case, they contend that disclosure of the government’s secrets will have catastrophic consequences.
Moreover, Walker, a former corporate lawyer appointed by the first President George Bush, is a conservative jurist. Independent-minded (he has called for legalization of drugs) and somewhat unorthodox in his judicial approach (he once required lawyers in class actions to bid for the position of class counsel) he is nonetheless conservative.
And finally, the government’s assertions were backed by classified affidavits from the highest-ranking intelligence officials in the land, the Director of National Intelligence and the head of NSA. Filed in a special secure facility in Washington, DC, these super-classified documents were transported under armed guard to California for viewing by Judge Walker. The Electronic Frontier Foundation, the lawyers for the plaintiffs, had objected to Walker’s reviewing this evidence because they worried the judge could not help but be swayed by the representations of such eminent officials (especially in the absence of any cross-examination by EFF).
They needn’t have worried. While he doesn’t address the affidavits directly, Walker clearly was unimpressed. And reading between the lines, he may also have been put off by the affidavits’ apparent failure to back up, with specifics, the Justice Department’s sweeping protestations, in their unclassified pleadings, about the suit’s grave threat to national security interests.
Indeed, Walker’s opinion, in tone and substance, reflects a growing distrust in the federal judiciary to the administration’s expansive assertions of executive power. In denying the government’s state secrets claim, Walker reasoned that the information sought to be protected was no longer a secret because it had been substantially confirmed by President Bush in his highly public defense of NSA’s eavesdropping.
True enough, Bush has, through his public statements, effectively declassified the basic information about NSA’s warrantless wiretapping program (which is claimed to be limited to calls in which one participant is abroad and is also suspected of links to Al Qaeda). But Bush hasn’t confirmed news reports of NSA data-mining of domestic phone call records—which is also the subject of EFF’s suit against AT&T. How the President’s statements about NSA wiretapping (no longer secret) vitiate the state secrets claim concerning NSA data-mining (still secret) is not at all clear.
Walker’s finessing of this point suggests a determination to compel the government to disclose more information. Not content to accept the government’s claims at face value, he appears to suspect either that the administration is lying, or that its actions are illegal, or both.
While Walker’s decision may not survive an appeal to the ninth circuit (which is friendly to assertions of the state secrets privilege) for the moment it stands as an articulate rebuke of the administration. “The compromise between liberty and security remains a difficult one,” Walker says at one point. “But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.”
Amen to that.
Go here to read Judge Walker’s opinion
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Peter Scheer, a lawyer and journalist, is executive director of CFAC.