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.