Terror Law Secrecy Lifts, Once, By Mistake

The story of the Al-Haramain Islamic Foundation, and the court decision it spawned Friday, should read like a feel-good tale about how the courts finally were allowed to play an important and respectable role in determining the level of secrecy the White House can maintain in its war on terrorism. It should be the sort of story many of us have been waiting to hear since the White House began its unprecedented expansion of presidential power following the terror attacks upon America.

The problem is that the "cooperation" came about as a result of an inexcusable mistake by another executive branch office, the G-men were forced to share classified information with the courts, and no federal judge in the country should expect such collaboration ever again. It's the exception, not the rule, and that's truly a shame.

Last week, the 9th U.S. Circuit Court of Appeals helped along, for a little while longer, a lawsuit by the foundation that challenges the government's power to eavesdrop without a warrant. The judges ruled that the Foreign Surveillance Intelligence Act might trump the "state secrets" doctrine that the White House has repeatedly used to block challenges to its power. The case now goes back to the trial court for further fact-finding and such.

The ruling is not all bleak for the feds. The judges -- all Democrat appointees, by the way -- prohibited the plaintiffs from using a "Top Secret" document that had inadvertently been transferred to them by the Treasury Department. It was the so-called "smoking gun" that helped prove the foundation's allegations that it had been the target of illegal wiretapping. The trial judge had tried to split the baby: refusing to allow the document itself into evidence, but allowing foundation lawyers to testify about their memories of it. The federal appeals court judges said no. No document. No recollections of it. Thus did the judiciary spare the executive from further embarrassment.

Now, the optimist in me looks at this scenario and says: Sure, the Justices ultimately may decide that the Foreign Surveillance Intelligence Act does not preclude the Justice Department from asserting the "state secrets" defense to block discovery in terror-law trials. But if the Supreme Court does, it will only be after many judges review the "secret" material to determine the legitimacy of the executive branch claim. That's a level of oversight with which I am comfortable.

But the pessimist in me says that the only reason the judges were given the opportunity to conduct their private (in camera) review of the "top secret" document was because the defendants already had seen it. I feel fairly comfortable assuming that, had the document not been turned over to the Foundation (which to its credit promptly gave it back), the Justice Department would have argued that the trial judge was not even entitled to review the document over which the "state secrets" doctrine had been asserted. That's just the way it's been in the Battle of the Branches since Sept. 11: "We can't really tell you why we must keep this information secret, Mr. Judge, but trust us, we're the government."

By Andrew Cohen |  November 20, 2007; 2:47 PM ET
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Am I correct in the assumption that the U.S. has no State Secrets Law? Did I miss this one?
I would be satisfied if trial judges (or unanimous appellates) were allowed to determin the worth of "state secrets" before dismissing actions for this reason.
After all, what if the "state secret" that couldn't be allowed to surface was simply that the government had performed illegally? Certainly someone weilding too much power and possessing too few ethics must believe that such a defense is justified.
It would not be the first time.

Posted by: DemoChristian | November 20, 2007 03:26 PM

The NSA and the WH intercept a call that a 9/11--like terrorist attack is imminent on say Sears Tower in Chicago. The civilian airliner has already been hijacked and is in the air. Impact will occur in 10 minutes. What to do?
The liberal Socialists who wouldn't make a peep about any of this if Bill Clinton was president, want GWB to go to the FISA Court and get permission before doing anything. GWB and the NSA on the other hand would bypass the FISA Court and spring into prevent-action without getting permission in order to save another 3,000 Americans lives.
Exactly which side are the liberal Socialist lip-service Americans on? It sure as h*** isn't on Americas.

Posted by: madhatter | November 22, 2007 01:24 PM

Assuming that you trust the government(or this administration, if you want to be more specific) no problem. If you don't then you must allow someone else(the courts) to examine all materials that the gov't use to justify prosecution.
The government could certainly act in such a scenario as madhatter suggests, and then notify the FISA court. They do have that option. But from their past track record, I wouldn't worry too much about action anyway.

Posted by: gdwtch52 | November 26, 2007 09:38 AM

Excellent article and lucid remarks.

Steven Aftergood of the FAS, Federation of American Scientists writes the most informative newsletter I've ever seen, the "Secrecy News".

Here is the latest amazing content below.


27 NOVEMBER 2007

Classification markings will be removed from classified documents that are admitted into evidence in the upcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC), a court ruled earlier this month. The former AIPAC officials, Steven J. Rosen and Keith Weissman, are accused of unauthorized receipt and disclosure of classified information.

"To see this onslaught of documents marked Secret, Top Secret, NOFORN -- it creates an atmosphere that is just unfair," said Judge T.S. Ellis, III at a November 8 hearing. "I find that looking at this mass of documents, as I have, with all of these prominent inch-and-a-half stamps of Secret, Secret, creates I think unfair prejudice [and] likelihood of confusion with the jury."

A legal issue arises because such classification markings "have both [inadmissible] hearsay and [admissible] nonhearsay purposes," he said. The legitimate nonhearsay purpose is that the markings "show that the Government intended that this be closely held information." However, to the extent that the markings indicate the classifier's "opinion as to whether disclosure of this material would be damaging to the national interest, that's clearly hearsay" and is impermissible, particularly since the classifier is not present at trial.

After discussing the issue at length, Judge Ellis ruled that "the bold, large classified markings for any documents that are admitted will be removed." Instead, there will be a stipulation by the parties that the documents were classified and the judge will instruct the jury to consider classification status only for the purpose of determining whether the information was closely held or not.

The November 8 hearing also considered the question of juror bias.

"There are very significant problems with selecting a jury in this case owing to the nature of the case and owing to the publicity that this case has been accorded," Judge Ellis said, noting "that there may be an animus in prospective jurors that should not be operating. And of course, I am referring to anti-Semitism."

He asked the parties to draft a questionnaire for use in the jury selection process. "You don't ask people, are you an anti-Semite and expect to get a straightforward answer. But I leave to you how that can be reasonably explored," he said.

A related legal question that remains unresolved is whether potential jurors can be dismissed peremptorily based on their religion or ethnicity. "In other words, can the Government strike someone [from the jury] just because his name ends in Stein or whatever, or can the defense strike somebody because his name is Mohammed," Judge Ellis said.

The transcript of the November 8 hearing is not in the PACER system of online federal court records, but a copy was obtained by Secrecy News.


The trial, which has been repeatedly postponed, will not take place before March 2008.

Posted by: MichaelEHuang | November 27, 2007 09:31 AM

madhatter.....it's even better...blogs/articles such as this miss an even larger point: they inevitably are founded on a profound mistrust of the executive branch and the various & sundry intelligence/law enforcement organiztaions.

pray tell...why should anyone trust the courts, legisaltive staffs, COLUMNISTS....with security secrets either? the evidence is sustained and clear that large numbers of people will leak information - even at the detriment of security - when it suits their political objectives. it's not that the executive shouldn't be trusted...it's also that the laternatives (the "watchdogs") cannot be trusted either. the left does not hold the high ground here once one moves beyond comforting abstractions and into the realm of actions and consequences.

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