When the New York Times disclosed a top-secret program of surveilance of international phone calls with suspected terrorists, the Bush Administration faced a critical choice: defend the program in public – including correcting misimpressions left by press reports – or try to preserve such secrecy as had not been shattered by the Times. Both choices had substantial downsides, but today the Ninth Circuit held (in a decision that is otherwise somewhat of a split decision* in a challenge brought to the program by “Al-Haramain Islamic Foundation, a designated terrorist organization, and two of its attorneys”) that the Bush Administration waived its legal defense that a full judicial review of the program would involve disclosure of state secrets because the Administration responded to the Times in a way that confirmed the program’s existence and some facts about it:
Following the terrorist attacks on September 11, 2001, President George W. Bush authorized the National Security Agency (“NSA”) to conduct a warrantless communications surveillance program. The program intercepted international communications into and out of the United States of persons alleged to have ties to Al Qaeda and other terrorist networks.
Though its operating parameters remain murky, and certain details may forever remain so, much of what is known about the Terrorist Surveillance Program (“TSP”) was spoon-fed to the public by the President and his administration.
After The New York Times first revealed the program’s existence in late 2005, government officials moved at lightning-speed to quell public concern and doled out a series of detailed disclosures about the program. Only one day after The New York Times’ story broke, President Bush informed the country in a public radio address that he had authorized the interception of international communications of individuals with known links to Al Qaeda and related terrorist organizations.
Two days after President Bush’s announcement, then-Attorney General Alberto Gonzales disclosed that the program targeted communications where the government had concluded that one party to the communication was a member of, or affiliated with, Al Qaeda. The Department of Justice followed these and other official disclosures with a lengthy white paper in which it both confirmed the existence of the surveillance program and also offered legal justification of the intercepts.
In light of extensive government disclosures about the TSP, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret. Unlike a truly secret or “black box” program that remains in the shadows of public knowledge, the government has moved affirmatively to engage in public discourse about the TSP. Since President Bush’s initial confirmation of the program’s existence, there has been a cascade of acknowledgments and information coming from the government, as officials have openly, albeit selectively, described the contours of this program.
Thus, we agree with the district court that the state secrets privilege does not bar the very subject matter of this action.
I should note, first of all, that the Sixth Circuit has reached a contrary conclusion, so expect the Supreme Court to weigh in on this sooner rather than later. The net result of this line of reasoning is that the media can combine with the courts to create a no-win situation: the media discloses a secret program and portrays it in an unfavorable light that suggests it’s illegal; the White House can’t stay silent without taking a public beating; and then the courts say that lawsuits can not only be filed because the White House fought back, but they also allow the development of a one-sided and incomplete factual record based on media misreporting.
None of which helps fight the bad guys.
* – Specifically, after finding that the lawsuit was not barred in its entirety, the court did find that a sealed document that was critical to the plaintiff’s proof of standing was covered by the state secrets privilege, but remanded for the lower court to determine whether FISA preempts the state secrets privilege. While this may yet play out successfully for the government, what the court should have done is find that the state secrets privilege applies to cover the subject matter of the action where a full and fair litigation of the controversy would require disclosure of state secrets, rather than approach the issue piecemeal.