Court Denies State Secrets Claim in Wiretapping Case
In a rare judicial denial of an official “state secrets” claim, a federal court yesterday rejected (pdf) a government assertion that a lawsuit against AT&T alleging illegal wiretapping should be dismissed because it would place state secrets at risk.
In May, Director of National Intelligence John Negroponte formally asserted the state secrets privilege in support of a motion to dismiss the lawsuit brought by the Electronic Frontier Foundation.
But instead of simply deferring to the executive branch, Judge Vaughn R. Walker did his own analysis of the matter.
“The first step in determining whether a piece of information constitutes a ‘state secret’ is determining whether that information actually is a ‘secret’,” he wrote.
He went on to conclude, based on public statements by the President and other officials, that the state secrets privilege was inapplicable in this case.
“Because of the public disclosures by the government and AT&T, the court cannot conclude that merely maintaining this action creates a ‘reasonable danger’ of harming national security.”
“It is important to note that even the state secrets privilege has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it…. To defer to a blanket assertion of secrecy here would be to abdicate that duty….”
The court’s rejection of unconditional judicial deference is noteworthy. Although the executive branch’s assertion of the state secrets privilege has been denied on at least four occasions in the past, those denials seem to have been based on technical defects or procedural failings rather than a substantial judicial assessment of the merits of the claim.
In a year when management issues like human capital, IT modernization, and improper payments have received greater attention from the public, examining this PMA tells us a lot about where the Administration’s policy is going to be focused through its last three years.
Congress must enact a Digital Public Infrastructure Act, a recognition that the government’s most fundamental responsibility in the digital era is to provide a solid, trustworthy foundation upon which people, businesses, and communities can build.
To increase the real and perceived benefit of research funding, funding agencies should develop challenge goals for their extramural research programs focused on the impact portion of their mission.
Without trusted mechanisms to ensure privacy while enabling secure data access, essential R&D stalls, educational innovation stalls, and U.S. global competitiveness suffers.