Administration Employing State Secrets Privilege at Quick Clip

The Bush administration is increasingly using the state secrets privilege. It is a series of precedents that allow the government to dismiss court cases on the grounds that evidence introduced in the trial could jeopardize national security.

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The government is classifying documents at a faster rate than it has in years. And at the same time, the administration is more often using something called the state secrets privilege in cases involving national security. This tool could bring court cases challenging the government's anti-terrorism policies to a screeching halt. In her second report on classified information, NPR's national security correspondent Jackie Northam says the State Secrets Privilege first came to prominence some 50 years ago.

JACKIE NORTHAM reporting:

On an October afternoon in 1948, an Air Force B-29 bomber took off from Warner Robins Air Force Base in Georgia. It was a top secret mission to test highly sophisticated radar equipment. On board were nine military crew members and four civilian engineers. Shortly after the plane hit its cruising altitude of 20,000 feet, something went terribly wrong. The B-29 crashed into the Georgia countryside. Nine people, including three civilians, died. The widows of those three civilians sued the government to try to get the accident investigation report. The government refused to hand it over. The case went all the way to the Supreme Court, says Scott Silliman, a professor at Duke University and an expert on military law.

Professor SCOTT SILLIMAN (Duke University): The Air Force secretary and the Air Force adjutant general submitted an affidavit to court saying, `If you release this report, it will create grave damage to the national security of the United States.' Supreme Court said, `OK, we're not going to release that information.'

NORTHAM: In the case, known as US vs. Reynolds, the government invoked the State Secrets Privilege, which allows the administration to push for the dismissal of court cases it feels could jeopardize national security, disrupt foreign relations or disclose intelligence gathering, methods or capabilities. Thing is, none of those appeared in the accident report, says Judy Palya Loether, a daughter of one of the civilians killed in the crash. Five years ago, Loether discovered a Web site that offered declassified accident reports involving Air Force planes.

Ms. JUDY PALYA LOETHER (Daughter of Killed Civilian): It just suddenly hit me there's an accident report out there that would tell me why that plane crashed and what that big secret was, you know, what it was they had been working on that day.

NORTHAM: When she received the documents, Loether was stunned to find that there was nothing in the report about secret equipment. Instead, Loether found a laundry list of crew errors that began when one of the plane's engines caught on fire.

Ms. LOETHER: The pilot was supposed to have feathered that engine, which means turning that engine off because it was on fire, and he feathered the wrong engine. Another engine seems to have suddenly lost power. And the accident report speculated that the engineer cut the fuel to engine number two instead of the engine that was on fire.

NORTHAM: By the time it crashed, three of the plane's four engines were not working. It appeared to Loether that the State Secrets Privilege was used to cover up poor maintenance and crew error rather than protect national security concerns. She and other surviving family members are trying to take the case back to court. In the years following the Reynolds decision, successive administrations use the privilege only sparingly, but a recent report by OpenTheGovernment.org, a coalition of government watchdog groups, said use of the privilege is on the rise. Rick Blum, director of the organization, authored the report.

Mr. RICK BLUM (Openthegovernment.org Director): Between 1953 and 1976, the government used this power four times. This is at the height of the Cold War. And in the past four years alone, we used that power 23 times.

NORTHAM: The state secrets privilege is currently being invoked in several high-profile cases challenging administration policies. A federal judge dismissed one lawsuit brought by an engineer who questioned the effectiveness of the country's nascent missile defense system. The government invoked the privilege in another case involving an FBI linguist who complained to her superiors about the quality of some translations of intelligence data before 9/11. She was later fired. Another case involved an African-American named Jeffrey Sterling who was a former CIA operations officer. Mark Zaid, Sterling's lawyer, says that his client was fired shortly after he sued the CIA for racial discrimination. Zaid says the CIA invoked the State Secrets Privilege saying that Sterling's entire case should be dismissed for two reasons...

Mr. MARK ZAID (Attorney): Because, in order for Sterling to prove his case of racial discrimination, would either require us to present classified information, or in order for the CIA to defend itself, they would have to invoke classified information. And that was unacceptable to the CIA.

NORTHAM: The Fourth Circuit Court of Appeals found that there was no way for the case to go forward without revealing classified details. The case was dismissed. Wilson Brown, a Philadelphia lawyer, says it's not at all unusual for judges to give substantial deference to the government in cases where the state secrets privilege is involved. Brown says judges are first briefed by government officials.

Mr. WILSON BROWN (Attorney): The theory is that the government--the executive branch is in the best position to assess all the various factors that need to go into whether a particular item of information has national security implications or not.

NORTHAM: Brown says judges may be very deferential but not necessarily supine. He says sometimes they do question the legitimacy of the government's claim. Brown represents family members of the civilians who died in the B-29 crash. They unsuccessfully petitioned the Supreme Court to revisit the Reynolds case in light of the newly declassified accident report.

Mr. BROWN: There is conceivably a cautionary tale here. When you extend as much deference as the Supreme Court has extended to the executive branch in the world of State Secrets, you ought to be prepared when a case is presented that shows that that privilege may have been abused or that deference may have been abused. You ought to be prepared to act on that.

NORTHAM: Justice Department and CIA officials declined to talk about the state secrets privilege. But Shannen Coffin, a former deputy assistant attorney general in the Justice Department's civil division, which dealt with cases involving the state secrets privilege, says it's wrong to presume that the government invokes a privilege haphazardly.

Mr. SHANNEN COFFIN (Former Deputy Assistant Attorney General): There are numerous levels of review, from the career lawyers who are involved in a case up to the Cabinet official who eventually has to invoke the privilege. It is not taken lightly by the government. It is very seriously guarded and is only used in circumstances where there is a sincere belief that important national security information is threatened by disclosure in court.

NORTHAM: Coffin says in the post-9/11 world, the need to guard national secrets is paramount and so judges should defer to the government. Yet, 50 years after the case involving the crash of the B-29 and the claim of state secrets, there's now much discussion in the legal community about how to better apply the privilege. Jackie Northam, NPR News.

MONTAGNE: This is NPR News.

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