National Scurity Veiled in Secrecy: An Analysis of the State Secrets Privilege in National Security Agency Wiretapping Litigation

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National Scurity Veiled in Secrecy: An Analysis of the State Secrets Privilege in National Security Agency Wiretapping Litigation

MILITARY LAW REVIEW

Volume 199 Spring 2009

NATIONAL SECURITY VEILED IN SECRECY: AN ANALYSIS

OF THE STATE SECRETS PRIVILEGE IN NATIONAL

SECURITY AGENCY WIRETAPPING LITIGATION

MAJOR KRISTIAN W. MURRAY*

To cover with the veil of secrecy the common routine of business, is an abomination in the eyes of every intelligent man and every friend to his country.1

Five years after our nation was attacked, the terrorist danger remains. We're a nation at war-and America and her allies are fighting this war with relentless determination across the world. Together with our coalition partners, we've removed terrorist sanctuaries, disrupted their finances, killed and captured key

operatives, broken up terrorist cells in America and other nations, and stopped new attacks before they're carried out. We're on the offense against the terrorists on every battlefront-and we'll accept nothing less than complete victory. In the five years since our nation was attacked, we've also learned a great deal about the enemy we face in this war. We've learned about them through videos and audio recordings, and letters and statements they've posted on websites. We've learned about them from captured enemy documents that the terrorists have never meant for us to see. Together, these documents and statements have given us clear insight into the mind of our enemies-their ideology, their ambitions, and their strategy to defeat us.2

I. Introduction

In December 2005, the New York Times reported that President Bush issued a classified Executive Order shortly after 11 September 2001, allowing for the telephonic eavesdropping and e-mail interception of American citizens' domestic communications without federal court authorization.3 The newspaper reported the purpose of the surveillance program was to intercept communications between U.S. citizens and Al Qaeda operatives to thwart and mitigate future terrorist attacks.4 The next day President Bush confirmed that the Executive operated a "terrorist surveillance program," stating:

In the weeks following the terrorist attacks on our Nation, I authorized the National Security Agency consistent with US law and the Constitution, to intercept the international communication of people with known Al Qaeda and related terrorist organizations. Before we intercept these communications, the Government must

have information that establishes a clear link to these terrorist networks.5

Following the disclosure of this surveillance program, aggrieved private citizen plaintiffs and the American Civil Liberties Union (ACLU) initiated several lawsuits against the alleged transgressing telecommunication carriers and the National Security Agency (NSA).6

Additionally, disclosure of the program caused considerable congressional debate as to the justification and need for a government surveillance program that may encroach on American citizens' constitutionally protected rights.7 The Government's response to these actions has been twofold. In the litigation forum, the Government has invoked the state secrets privilege in an attempt to dismiss the suits via summary judgment.8 In the public policy venue, and indirectly through an Attorney General opinion,9 the Government has argued that the terrorist surveillance program falls broadly within the President's Article II constitutional powers10 or statutory authority.11

This article will focus on the Government's assertion that the common law doctrine known as the state secrets privilege bars further litigation regarding the NSA's electronic surveillance program. In doing so, this article will examine the competing interests involved. Namely, this article examines the Government's interest in preventing in-court disclosure of information that may compromise the sources and methods of its foreign intelligence gathering. This interest is weighed against the American public's need for transparency and assurances that the Government is not inexcusably encroaching on individual constitutional rights.

The federal government, from President Jefferson's administration to the present date, has utilized the state secrets privilege or a form of the privilege in judicial proceedings.12 However, since the seminal case of United States v. Reynolds13 in 1953, the Government has more frequently invoked the privilege in high profile litigation.14 The breadth, scope, and use of the privilege have become extremely relevant in the United S...

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