State secrets cases increasingly hinder journalists’ ability to report on controversial court cases.
From the Fall 2005 issue of The News Media & The Law, page 29.
Correction: In this article, we incorrectly reported that the government invoked the state secrets privilege in 23 cases since 2001. The figure came from the 2005 Secrecy Report Card published by OpenTheGovernment.org. The privilege was actually invoked seven times from 2001 to 2005, according to the corrected 2005 report card, which is not an increase from previous decades.
By Susan Burgess
In a growing number of legal cases, courtroom doors are shutting out the public and press in the name of national security. The Bush administration has invoked the state secrets privilege in 23 cases since 2001, shuttering not just documents, but courtrooms, according to OpenTheGovernment.org, a coalition that includes The Reporters Committee for Freedom of the Press. Between 1953 and 1976, the government invoked the privilege in only four cases.
The state secrets privilege, created by the U.S. Supreme Court in 1953 in U.S. v. Reynolds, allows the government to withhold or prevent the release of information that, if disclosed, would endanger national security. Parties in lawsuits who need privileged documents to make their case are frequently frustrated because courts will dismiss valid legal claims for lack of evidence. Even if legal claims move forward, courtroom doors are closed because of the state secrets privilege. The result: The press is denied a chance to inform the public about the workings of the government, and the public loses its ability to scrutinize the basis for the government’s assertion of the privilege, the court’s ruling that the privilege should stand, and the merits of the parties’ claims.
In April, the clerk for the U.S. Court of Appeals in Washington, D.C., alerted the attorneys for Sibel Edmonds, an FBI translator and whistleblower, that oral arguments in her case, Edmonds v. FBI, would be closed to the press and public. The parties were to argue whether the lower court had properly dismissed Edmonds’ claim due to state secrets, finding that the government could withhold information needed to evaluate her claim because producing it would jeopardize national security. In her underlying complaint, Edmonds alleged that the FBI had fired her in part because she had blown the whistle on alleged department misconduct and possible espionage.
The government had not requested that the appellate arguments be closed, and had even alerted the Court of Appeals that it was prepared to make its argument in public. Both parties filed public briefs. The court, however, did not issue an opinion justifying its announcement that arguments would be closed. When asked by friends of the court, including the Reporters Committee, to open the proceeding, the court denied the request, again offering no explanation.
The court’s unilateral decision to close arguments to the press poses several problems for reporters, which prompted a media coalition led by the Reporters Committee to file a friend-of-the-court brief urging the Supreme Court to review the decision. Because the appellate court failed to explain its reasons for closing the argument, it will be harder for reporters to predict when they will be denied access. Even when national security is concerned, the journalists argued, appellate courts must explain why closure is needed to protect a compelling government interest before closing a proceeding. This is crucial for enabling the public to serve as a check on the courts and ensure that justice is carried out.
The court’s decision also kept reporters from hearing the government’s arguments for why it should be able to use the state secrets privilege to avoid litigation. Reporters’ access to court proceedings is crucial when matters affecting the public at large are in issue. As the Reporters Committee noted in its brief, public scrutiny is necessary in state secrets privilege cases to ensure that the government does not use the privilege to hide wrongdoing.
The bullet-proof nature of the state secrets privilege is extremely problematic for government oversight, according to critics. “The problem,” says Robert Pallitto, professor of political science at the University of Texas at El Paso, “is that no one gets the information. First, you don’t have to articulate a specific basis for asserting secrecy. And, secondly, that shuts down the whole game. Once you raise it, no one gets to question it further.”
Most troubling is evidence that the government uses the privilege to cover up its own wrongdoing. In Reynolds, widows whose husbands had died in a B-29 bomber crash sought damages from the government, but their claims were dismissed when they were denied access to the evidence needed to make their claims. The court permitted the government to withhold records on the grounds that they contained state secrets. In 2004, declassified documents showed that military negligence — faulty maintenance — led to the bomber’s crash, and there were no state secrets in the accident report that prohibited its release. Despite these revelations, an appeals court refused to find that the government committed fraud in withholding the documents for national security reasons.
“That it turned out that the documents did not include any national security issues shows that there’s tremendous potential for abuse,” Professor Pallitto said. Still, reporters should not expect the Supreme Court or Congress to change the privilege in the near future. “We think that the Supreme Court should cut it back, but we doubt that things will change any time soon. The last time that a case involving state secrets was before the Court, they did not address the issue.”
Professor Pallitto coauthored an article about the state secrets privilege with University of Texas colleague Professor William Weaver. In their article, they explain that, “other than the scarce exception, the privilege is invariably fatal to efforts to gain access to covered documents.” “It is hardly surprising that such an effective tool would tempt presidents to use it with increasing frequency and in a variety of circumstances,” they wrote.