March 9, 2012
On March 9, 2006, President George W. Bush signed the reauthorization of the USA PATRIOT Act into law.
Exactly one year later, then-U.S. Attorney General Alberto Gonzales and FBI Director Robert S. Mueller acknowledged the FBI improperly used the Patriot Act to secretly obtain personal information about Americans.
After apologizing, they vowed to prevent further such intrusions.
Was this apology the result of some legal action that forced the government to admit its wrongs?
Actually, it was in response to a report from the Department of Justice’s Inspector General.
Nevertheless, that isn’t meant to suggest that there weren’t numerous lawsuits filed by civil liberties advocates alleging violations against the government.
For example, the American Civil Liberties Union sued the National Security Agency in 2006, claiming that it, along with other plaintiffs such as the National Association of Criminal Defense Lawyers and Greenpeace, was the subject of warrantless interception of phone and email communications.
However, the ACLU’s claim was defeated because, unable to provide evidence that it was the subject of such warrantless monitoring, it lacked standing to bring the suit.
The ACLU tried to compel the disclosure of such evidence from the government during discovery.
The government was able to escape such disclosure thanks to the State Secrets Doctrine, an evidentiary rule that allows the government to exclude any evidence from civil discovery that might endanger national security.
This Doctrine was first recognized in court on another March 9 – in 1953, with the Supreme Court’s decision in United States v. Reynolds.
Reynolds didn’t involve anything as ominous as wiretapping or surveillance.
Instead, it was a simple action under the Federal Tort Claims Act against the U.S. government.
It was brought by three widows of civilians employed by an Air Force contractor who were killed when the bomber they were riding in crashed.
The plaintiffs requested that the government produce the accident reports concerning the crash.
The Air Force responded, though, that the release of such details would threaten national security.
Because of this, the trial court entered a directed verdict for the plaintiffs, and the judgment was affirmed on appeal.
The Supreme Court, however, reversed the appeals court, and accepted the government’s assertion of this privilege with seemingly little reservation.
But was at least some reservation warranted?
With the release of Reynolds’s much sought after reports in 2000, it would appear so.
Under anything but the broadest of readings, the reports didn’t contain any information that could compromise national security.
The reports did indicate that the bomber was in poor condition at the time of the crash, indicating negligent maintenance on the Air Force’s part, a fact potentially very damning to its defense.
Oddly enough, then, it doesn’t appear that the State Secrets Doctrine was appropriately invoked in the case that gave birth to it.
This really makes little difference, since the mere mention of “national security” in a courtroom gives the government a free pass, and the Court in Reynolds would have likely accepted the state secrets privilege even if it had known the contents of the reports.
Since “national security” seems to find a way to be increasingly important, the State Secrets Doctrine isn’t going anywhere.
This also means that there will likely be more March 9 events related to civil liberties.