From: <swp2102@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Thu, 11 May 2006 14:44:58 -0400

Paper 1

Paper 1

       Goliath has taken the bait and will be stepping into the
ring: attorneys for the Department of Justice have stated their
intent to intervene in the Electronic Frontier Foundation’s suit
against AT&T.  Once permitted to intervene, the government will
invoke the state secrets privilege primarily in hopes of dismissing
the suit by claiming that “the very subject matter of the suit is a
state secret.” US v. Reynolds, 345 U.S. 1 at 11, (1953).  Should
the court deny dismissal, the successful invocation of the state
secrets privilege would at least permit the government to disallow
from the evidenciary record Mark Klein’s declaration of witnessing
firsthand AT&T’s channeling of Internet traffic to NSA.  There
isn’t much hope for David, but don’t miss this monumental battle.
	The state secrets privilege is a powerful bludgeon with an
interesting history.  In a letter to Thomas Jefferson, General
Wilkinson is purported to have commented on the culpability of
Aaron Burr in the latter’s trial for treason.  Though Burr’s motion
to have the letter produced was ultimately denied because the
letter’s relevance was questionable, Chief Justice Marshall
breathed life into the state secrets privilege when he stated in
dicta that “[i]f it does contain any matter which it would be
imprudent to disclose, which it is not the wish of the executive to
disclose, such matter […] will, of course, be suppressed.” United
States v. Burr, 25 F. Cas. 30 at 37.
	From the early Burr case and the later Reynolds case through the
Pentagon Papers case in the 1970’s and the recent post-9.11 glut,
the precedential line of the privilege’s invocation has firmly
established its validity.  The doctrine has crystallized somewhat,
at least with respect to the procedural requirements for invoking
the privilege: there must be 1) a formal claim of privilege 2)
filed by the head of the governmental department in charge of the
matter 3) after personal consideration by that officer, and 4) the
privilege must be invoked with specificity as to what is and is not
a secret, so that if possible the plaintiff’s claim can proceed. 
Reynolds at 7-8.  When these procedural requirements are met, the
court is then to ask whether the executive’s claim that disclosure
will present a “reasonable danger” of harm to national security is
justified. Reynolds at 9.  This amounts to judicial deference at
its broadest; so long as the government tees the ball up properly,
the court won’t interfere with the swing.
	In the EFF case, surely the government won’t fail to meet such
clearly delineated procedural requirements, so it will be up to the
court to give the “reasonable danger” test some teeth.  As the amici
point out, Mark Klein’s statement has already been made public, and
moreover there has recently been a raging public debate over the
legality of the executive’s methods of information collection. 
Hence, the evidence the government attempts to suppress isn’t even
a secret, much less a secret that threatens harm to national
security.  But such logic his hasn’t stopped the court from
edentulating itself before; the “mosaic theory” says that when
information contained in the evidence isn’t “identical” to that
already in the public domain, and even when it is, the state
secrets privilege counsels suppression of the evidence or dismissal
of the case. Fitzgibbon v. CIA, 911 F.2d 755 (1990); Washington Post
v. US Dep’t of Def., 766 F.Supp. 1 (D.D.C. 1991).  Despite the
amici’s cogent arguments on this point, the court has a firm, or at
least pre-existing, legal basis from which it may, and likely will,
suppress or dismiss.
	There are other arguments to be made. First, any elements of
Klein’s statement which do in fact divulge real secrets not already
in the public domain should be redactable.  Second, there is a
qualitative difference between “already public knowledge” which
might harm national security if brought from the shadows back to
the limelight (as contemplated in Edmonds v. DOJ, 323 F.Supp.2d 65,
76, (DC Cir. 2004)) and information which is not only “already
public knowledge,” but has been at the center of a raging political
debate, as is the case here.  Third, the state is invoking the
privilege not to defend itself from a probing discovery motion, but
rather as an offensive strike at evidence which, so far as the court
knows, was properly obtained by Klein.  This presents a qualitative
difference which might counsel a tweaking of the doctrine in favor
of heightened scrutiny when the privilege is invoked as a sword
rather than a shield.  Fourth and most importantly, the court would
be aiding and abetting the Executive in its continued trampling over
an act of Congress, FISA.
	In Kasza v. Browner, the majority and concurrence disagree over
whether the EPA’s specific provision for the president to exempt a
certain governmental activity or locale from the EPA’s regulations
should abrogate the common law state secrets privilege with respect
to such presidential exemptions.  (Find Citation, (9th Cir. 1998))
In essence, J. Tashima argues in his concurrence that where
Congress has passed a law and provided the Executive with a
specific mechanism for performing specific tasks, that mechanism
should not be dodged by simple invocation of the state secrets
privilege, provided that the statute “speaks directly to the
question addressed by the common law.”  In recognition of the
difficulties presented by our amorphous enemy in the Global War on
Terror, Congress supplemented the Executive’s arsenal of
information-gathering techniques with warrantless wiretapping of
specific approved targets under FISA.  If the court wishes to
remove the last of its own teeth, it certainly wouldn’t be beyond
plain meaning to say that FISA doesn’t “speak directly” to when the
Executive can keep secrets about its wiretapping methods.
	Every court that has addressed the state secrets privilege has paid
lip service to the danger of Executive abuse which the doctrine
presents, but none has yet drawn any meaningful lines in the sand. 
This case presents an excellent opportunity for the court to make a
real doctrine out of a rubber stamp.  The 4th Amendment prohibits
dragnet searches and the Privacy Act of 1974 prohibits information
obtained for one purpose to be used for another without consent. 
The court has helped the government skirt around both the 4th
Amendment and the Privacy Act of 1974 (see e.g., United States v.
Miller, 425 U.S. 435 (1976) and Smith v. Maryland, 442 U.S. 735
(1979)), so perhaps it is only natural that it help it skirt around
FISA here.  My money is on Goliath, but I hope David wins.

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