Invoking the State Secrets Privilege

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In a hearing in Detroit last week, the federal government argued againts hearing a case that challenges its domestic surveillance program. The Justice Department says it cannot talk about the program because to do so would compromise national security.

NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

At a hearing in Detroit last week, the federal government argued that hearing a case that challenges its domestic surveillance program would require disclosure of national security secrets.

The government wants the judge to dismiss the ACLU lawsuit and cites what's known as the state secrets privilege, and there's plenty of precedent. The Supreme Court accepted the idea of a state secret privilege more than 50 years ago. Some call it the president's nuclear option, an executive power that essentially stops a lawsuit dead in its tracks, and because of that, it hasn't been used all that often.

The Bush administration has invoked state secrets several times recently, on two sets of issues: telephone data searches and on what's known as extraordinary rendition, the transfer of terrorism suspects to third countries.

In the first case, critics charge that the government uses the privilege to avoid judicial review of policies they regard as illegal. In the second case, they believe the government is covering up embarrassments, not secrets. In both cases, the government says disclosure threatens intelligence sources, and methods, and national security.

Later on in the program, musicians Elvis Costello and Allen Toussaint talk about their trans-generational and transatlantic collaboration, but first, the state secrets privilege. If you have questions about how it works or a case in which it was used, give us a call. The number here in Washington is 800-989-8255. That's 800-989-TALK. E-mail us, talk@NPR.org.

NPR correspondent Larry Abramson has been following a number of the cases in which state secrets privilege was invoked. Back from Detroit, he's with us here in studio three. Good to have you back on the program, Larry.

LARRY ABRAMSON reporting:

Thanks, Neal.

CONAN: Tell us about that case and how it proceeded in Detroit. How was the state secrets privilege invoked?

ABRAMSON: Well, you remember this is a suit by the American Civil Liberties Union, on behalf of a number of journalists and scholars, who say that fear of surveillance is, basically, ruining their work. They can't talk to any sources anymore, because the sources are afraid that they're going to be eavesdropped on, by whoever. And they say, that they themselves are so afraid that they're going to be eavesdropped on, that they frequently have to take expensive trips overseas rather than talking with somebody by phone.

So they've sued in order to, basically, shut the program down. And the government has stepped in, and, as you said, it's the same procedure as in many cases. They don't argue the merits of the case and say these people, you know, don't really have a right to do this. The first thing they bring up is this privilege, which says the government can invoke this privilege and say that it would jeopardize national security to go on with this particular suit.

And it's very difficult for the civil liberties organizations to get past this because the standard of proof is not really clear. Many people, particularly the government, believes that the only threshold that they have to reach is to invoke the privilege - is to say that this threat is there.

And they have a high-ranking official, the head of the CIA, in many cases, or the head of the National Security Agency, sign a stipulation that says state secrets are at risk. And in many cases, that's as far as it gets. The judge just says, that's the end of the case. We're gonna have to stop right now.

CONAN: Wait a minute. Do they have to tell the judge what's - a little bit more about what's at risk here?

ABRAMSON: Well, this is part of the question. They can, and they do. And in fact, the judge in Detroit has at her disposal, a number of documents filed by the Central Intelligence Agency or the National Security Agency, that she can look at, and that's supposed to provide more detail about why they don't want to expose these secrets.

But the government has argued that they don't even have to do that, that they don't even have to explain to the judge. And, in fact, some people think that that puts the secrets at risk, too. Because judicial secrecy is pretty tight, but it's not perfect. So they are running some risks by explaining these things to the judge. And in some cases, judges have ruled in favor of the government without reading that affidavit.

I think a lot of the civil liberties lawyers also think that the affidavit doesn't really contain that much detailed information. It basically says, we have a program that we cannot discuss in public or, in the case of these extraordinary renditions that you talk about, the CIA will say, we cannot confirm or deny - that famous phrase...

CONAN: Mm-hmm.

ABRAMSON: ...that this goes on, so we can't talk about anything right here. And that's as far as it - it's going to go.

CONAN: Mm-hmm.

ABRAMSON: So it really is - it's a privilege that only the government can invoke. You or I cannot invoke this. Sometimes the government even invokes it in cases in which it is not a party. In a suit in San Francisco, where the Electronic Frontier Foundation is suing AT&T, the government came in and said, this suit can't go forward. It's not our suit, but we're going to block it if we can, because it would reveal information that would be damaging to all Americans.

CONAN: And so, the courts really - courts are very uncomfortable telling executive, particularly in time of war, what it can't do.

ABRAMSON: That's right. And, basically, the interpretation in the vast majority of these cases - I think we're running up around 60 of these throughout the history of this privilege, since the - after the second World War.

CONAN: More than 50 years, so...

ABRAMSON: Yeah.

CONAN: ...again, not all that often.

ABRAMSON: Not all that often, but just about every time, the courts have differed to the executive, and this is something we've heard in a lot of terror cases. It came in the Zacarias Moussaoui case, in the Hamdi case; that the executive frequently tells the judiciary, you don't have a right to make a determination of what an enemy combatant is or, in this case, what a secret is. And in most cases, the judges have said, you're right. We don't. You do. That's your job as the head of the CIA, so we're going to have to take your word for it.

There is one case that I was able to find, in which a gentleman who was suing -Jeffrey Sterling was suing the CIA - saying that he was the victim of employment discrimination. The government claimed the state secrets privilege, saying that even to argue that issue would bring up state secrets, because he was a covert operative. And a judge in New York said, well, I just - I'm not convinced. He didn't say why he wasn't convinced, or he didn't disclose that publicly.

CONAN: Mm-hmm.

ABRAMSON: But then the case was moved to Virginia, the venue was changed, and that court did grant the state secrets privilege. So in the end, you can't really say that this has ever been successfully challenged in the modern era.

CONAN: And what happens when its dismissed on this grounds? Normally, if the government says, we can't pursue this. Then the court says, well, OK, then you lose.

ABRAMSON: Well, in this case, no. The state secrets privilege is different. It's a governmental privilege that allows them - usually what happens, in fact, is that the government says, we want to invoke this privilege, and we want to dismiss this case. And so the two motions go together, and the judge will rule that the case should be dismissed.

Now, in my case, the civil liberties - the American Civil Liberties Union versus National Security Agency in Detroit - the ACLU has said, well, we don't need to expose any secrets. There's plenty of information out there about this case. In fact, the government has acknowledged - the president has acknowledged that this surveillance program is going on. There should be enough information out there in the public sphere to discuss and litigate this case without any more secrets being divulged. But the government says, basically, you don't know what you're talking about. There are plenty of secrets that could be exposed.

CONAN: All right, let's get some listeners involved in the conversation. If you'd like to join us, 800-989-8255, 800-989-TALK. E-mail is talk@NPR.org. Robert, Robert's calling us from Tonawanda in New York.

ROBERT (Caller): Hello. I have a question on constitutionality and national security. I know that in the Constitution it says that the Senate has to keep, or each House of Congress has to keep a journal of its proceedings and that they can restrict publishing some parts if they deem it necessary.

CONAN: Mm-hmm.

ROBERT: Where does the executive branch get any authority to restrict information due to national security? It's kind of a broader question, but...

CONAN: That is a broad question. Well, let's go back to the origins...

ABRAMSON: Well...

CONAN: ...of this case, though, Larry.

ABRAMSON: ...yeah. I mean, the government - the executive's right to classify information has long been recognized. And it doesn't mean that the information remains entirely secret. People with the requisite clearances can see that information. It can be reviewed by the Senate and House Intelligence Committees, for example. It just means that the information can't go out to the public. Now what they're invoking here is a judicial privilege, saying that you lose your right to bring a civil suit because it would endanger national security.

So I guess that's a little different than refusing to disclose information. They're not saying they can't disclose the information, they're just saying you can't litigate on the basis of it.

CONAN: Let's go back - and thanks very much for the question, Robert...

ROBERT: Thank you.

CONAN: ...go back to this case in 1948, I guess it was...

ABRAMSON: Right.

CONAN: ...a B-29 crashed on a spy mission...

ABRAMSON: Mm hmm.

CONAN: ...and the family of those involved thought there may have been negligence involved in the maintenance of the aircraft, and they sued the government. And the government said wait a minute, this aircraft was involved in a highly sensitive mission. To discuss this case would involve disclosure of important electronic secrets that were on board.

ABRAMSON: Right. And that's the case that set the precedent where the government basically said there's a higher interest here than these widows who wanted to find out why their husbands were killed in this mission. And that is national security. There was advanced radar on that plane, if I reckon correctly - if I remember correctly. And they said, well, we can't let that information go out simply - in order to satisfy these three people. And the Supreme Court agreed, that they did have - the government did have a right to withhold that information.

It did turn out later on, though, that the information that they were holding onto, in fact, had nothing to do with the radar. It actually had to do with bad maintenance records. But we didn't find that out for 50 years. So I think the widows who brought those cases and the people who represent them felt that their justice was denied because of that tactic.

CONAN: Mm hmm. And the fear that since secrets are not revealed, that they're not willing to discuss - of course, that would be a tautology, but anyway -that in fact, in these cases, there's no way to know whether the government is simply covering up mistakes and embarrassments in some circumstances, or whether those concerns are real.

ABRAMSON: Right and - but let's give the government their due. If you are asked to disclose how you target members of a terrorist group in order to allow litigation to go forward, you're basically giving away the keys to the store. You're telling people how to avoid surveillance. And the same thing goes for some of these employment discrimination cases. They did possibly threaten a lot of sensitive information that would have jeopardized, perhaps, the lives of people working undercover.

So it's very difficult for them - for the government to explain in public why they're trying to keep something secret, because, you know, it's a secret. And that's the nature of it, and they can't jeopardize somebody's life in order to allow a civil proceeding to go ahead.

CONAN: And in the five cases out of the 60 or so where this has been cited, has the - how are the litigants fared? Did they win?

ABRAMSON: Which five cases?

CONAN: In the five cases of the 60 or so where the government invoked the state's secrets privilege, you said the judges overruled them and said, oh, let's hear the case.

ABRAMSON: No, no, I'm sorry, you misunderstood. There have been 60 cases, and I believe there's only one where the judge has said, has overruled...

CONAN: Aha! Oh, my mistake then.

ABRAMSON: ...yeah, and then the venue was changed. So, basically, this has been 100 percent winner for the government in virtually every case they've been able to dismiss - just to block litigation on the base of this. Now there have been appeals. There was a case of an FBI translator named Sibel Edmunds who appealed her dismissal and her case was thrown out on the basis of state secrets. But she was only able to get so far. I don't believe it was ever heard by the Supreme Court...

CONAN: Mm hmm.

ABRAMSON: And the courts are all agreed that this is a privilege that the Supreme Court has recognized, and, there's - that's it.

CONAN: Well, we'll have more on this when we come back from a break. We'll be joined by William Weaver, professor of law at the University of Texas at El Paso, who's written on this question. If you'd like to join the conversation, 800-989-8255, e-mail is talk@npr.org.

I'm Neal Conan. You're listening to TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. We're discussing what's called the State Secret Privilege. It's the Executive Branch's ability to keep sensitive information out of civil litigation in the courts. We heard a little earlier about the dangers of an administration overusing the privilege. A little bit later on the show, we'll hear the other side: why keeping information out of public view and out of the courts is an important national security matter.

Our guest is NPR Correspondent Larry Abramson. Of course, you're invited to join us: 800-989-8255, e-mail is talk@npr.org. National security is obviously slippery ground. It's generally agreed that it's of tantamount importance, but there is no built-in mechanism to check that the privilege is being used honestly and only as a last resort.

Joining us now is William Weaver, professor of law at the University of Texas at El Paso. He's with us from the studios of KROD-AM in El Paso. Nice to have you on the program today.

Professor WILLIAM WEAVER (Law, University of Texas at El Paso): Nice to join you.

CONAN: And why do some people fear that the privilege has become a tool to protect the executive branch rather than a tool to safeguard secrets?

Prof. WEAVER: Well, one reason is you can just look at the history of the usage. Between 1953 and 1976, there're only four reported cases for the privilege. And then, beginning with administration of Jimmy Carter, which had nine assertions of the privilege, and increasingly throughout the last 30 years, you've seen that presidents have turned to it - and more and more often.

And one of the reasons is, is because it's one of the three things in life you can't avoid: death, taxes, and the State Secrets Privilege. They always win, they will get you. So, with a tool out there like that for presidents to seize on, which virtually stops any suit which may lead to embarrassment or exposure of criminal activity on the part of the executive branch, it is just too tempting for them to forego.

CONAN: And, from reading some of your material, you also suspect that the use of this has been broadened. It's no longer on very narrow cases.

Prof. WEAVER: No, it's not. I also think another change over time - which has been important - is that I believe even though the privilege was born of a fraud on the court, the U.S. Supreme Court - the information that was sought by the original litigants in U.S. v. Reynolds was not, in any way, shape, or form implicating national security. I still think that most of the time - up until relatively recently, up until say the administration of Reagan - the impetus for assertion of the privilege was bottom up. That the people who actually dealt with classified information would go and say, look, we can't turn this over, because this will jeopardize us for reasons of X, Y, and Z.

I think what's transpired over the last two decades - and this is not a right wing, left wing thing. This is not a Republican, Democrat thing. This has become equally alluring to all presidents. I think what's transpired is it's become a top-down privilege. That you've seen that administrations - right, high up - have decided to invoke the privilege not so much to do with national security, but oftentimes, to do with protection of presidential positions.

CONAN: Let's get another caller on the line. Charles, Charles with us from Kalamazoo in Michigan.

CHARLES (Caller): Hi, yeah. My question is, is this really going to unbalance the checks and balances that are currently set up in our government?

Prof. WEAVER: Well, I believe it will. You know, we have a Constitution that was predicated not on the best features of humanity, but on the worst features of humanity. The words, trust us is nowhere in the Constitution. We depend on skepticism. We depend on transparency. We depend the judicial branches and Congress checking the executive, and the executive checking Congress.

And so, to have a privilege where the president can simply put it on like a ring out of Lord of the Rings and disappear all the embarrassing information or potentially incriminating information just goes away - whatever that is, that's not us. That's not the history of the United States.

CONAN: Larry Abramson, let me bring you back in this on the political level. And, of course, during the hearings in Congress on the warrantless wiretap operation and the suspicions about data mining and all of that, Congress and many experts - of course, other experts will disagree - but most in Congress seem to say that, gee, if we could get this in the courts, Mr. Attorney General...

ABRAMSON: Right.

CONAN: ...you're not going to win on this.

ABRAMSON: Right. Well, that has been the two-pronged approach of a lot of groups opposed to the NSA surveillance. They've been going to Congress trying to get an investigation going, and that hasn't gotten very far. We haven't heard an investigation in Congress of this program. So they've been looking to the courts at the same time. And that second prong is now threatened to be stymied by this approach by the government. And I think that's what a lot of people are concerned about.

And the government, in both cases, has used the secrecy idea. In Congress, they've said, well, we can't brief everybody in Congress on how the NSA surveillance is working, because then it's definitely going to leak. We will brief a certain number of members of Congress. They expanded that circle, somewhat, to include more people on the intelligence committees. But, you know, that's as far as they were willing to go. And now they're making the same claim, that this information wouldn't be safe in the courts.

CONAN: William Weaver, do judges get, you know, full briefings on what's involved here so they can make informed decisions about whether state secrets are really at risk?

Prof. WEAVER: Well, theoretically, they can. They can order the documents to be produced for an in-camera inspection or a private inspection of the documents. But, historically, they don't. Since 1990, only in about 20 percent of the cases do judges order an in-camera inspection of any classified material. So the judiciary has pretty much cut itself off from oversight in a deeply entrenched policy of deference. Whenever the word national security is mentioned, it's almost talismanic: the blood drains from the judges face and that's it. The game is pretty much over.

CONAN: Charles, thanks very much for the call. Let's turn now to Ray, and Ray is calling us from San Francisco.

RAY (Caller): Speaking of the blood draining from their face, I can only imagine what you must have seen when the FISA court was just preempted, as it has apparently been in a number of cases. But I wanted to ask your first guest, Larry Abrams?

CONAN: Abramson, yes.

RAY: Abramson, thank you. I think maybe this relates, perhaps, more to Mr. Abramson because he brought it up. The case of the widows, and, perhaps, their heirs from the crash of the B-29 - you said it took 50 years to recover information that what was going on was a cover up of bad maintenance records. And I suppose that information came to you because you continued to press the case. But you didn't really give us any details about how you went about finding that out and what it meant to the heirs.

ABRAMSON: Well, it certainly wasn't me. And I don't think it was actually journalists. I think the CIA declassified, or the Defense Department declassified the information. It was simply a matter of time. There's a regular declassification procedure that goes on in most branches of government. And I that the information, you know, simply got old enough that it was its time.

I don't know what happened to the heirs. I don't believe that they have been able to recover any damage on the basis of this. You know, I think that their cases have basically been stopped. It has served to buttress the case of those who say we shouldn't trust these blind submissions that we never get to see from the government, because there may be nothing behind them.

RAY: How do we identify that case, if it's still going?

ABRAMSON: I don't think that it is still going. I think...

RAY: Okay.

CONAN: I think I did read something, Larry, that suggested indeed that the family - the family of one of the deceased did contact another lawyer and seek to continue the case...

ABRAMSON: Oh, is that right?

CONAN: ...and was stopped again on the same idea, that the government says, no we still believe that there were secrets in there...

ABRAMSON: Okay.

CONAN: ...and, William Weaver, can you help us out here?

Prof. WEAVER: Yes, the case was pursued. Relatively recently, it was denied cert by the U.S. Supreme Court. And it was the same law firm that originally filed the case in Pennsylvania - brought it again, I believe, around 2000, and, again, lost on the State Secrets Privilege and on the finality of decision making.

And the way they found out about the information is interesting, is somebody who collects plane crash information and just puts it up on the Internet asked for that stuff and was given the stuff. And they put it up on the Internet. And one of the children of the original litigants came across while searching the Internet, and that's how they found out about it. It wasn't through any declassification procedure that they asked for. It was purely accidental.

RAY: Thanks for your responses.

CONAN: Okay, Ray, thanks very much for the call. Wiretapping and Extraordinary Rendition, the transfer of terrorism suspects to third countries are among the clandestine programs the government has launched to wage what it describes as the war on terror. Because the programs are so secret, it can be difficult to judge whether or not they are legal. The administration argues secrecy is needed to preserve the usefulness of those programs, and that State Secretes Privilege is a valuable tool.

Joining us now is Bryan Cunningham, a principal at the law firm, Morgan & Cunningham, a Denver-based law and homeland security firm. He was previously deputy legal advisor to the NSA from 2002 to 2004, and a senior CIA officer and federal prosecutor in the Clinton Administration. He joins us from the studios of Colorado Public Radio in Denver. Nice to have you on the program today.

Mr. BRYAN CUNNINGHAM (Attorney): Thank you for having me, Neal. I enjoy your show.

CONAN: Thanks very much for that. Is the State Secrets Privilege overused?

Mr. CUNNINGHAM: I think it's important to keep a few facts in mind, here. I was glad to hear Professor Weaver not say, as he's been quoted as saying in The New York Times and elsewhere, that the use of the privilege has actually increased under the Bush administration. In fact, the Reporters Committee and the national News Media & Law homepage have said it's actually decreased under the Bush administration. So it's important to have this debate on the facts.

I think, you know, the question of whether it's overused or misused, unfortunately - lawyers always like to dodge the questions...

CONAN: Right.

Mr. CUNNINGHAM: ...really depends on knowing the facts of the individual case. For example, in the three or four cases that the Bush administration has asserted the privilege - in the NSA eavesdropping program context, I can imagine, having served at the National Security Council and the CIA, any number of scenarios under which it would be tremendously damaging to our national security for al-Qaida to understand any of the facts about this program. That said, I don't know. I don't have access to the classified data. We won't know unless and until somebody talks about what the actual secret is.

CONAN: What do you make of the argument that the ACLU I think argued in its case last week in Detroit, saying that, look, we don't need any more secrets, we just need what's in the press now?

Mr. CUNNINGHAM: Well, I should say, Neal, in the interest of full disclosure, that I am a party to that case. I filed along with the Washington Legal Foundation an amicus brief, friend-of-the-court brief, in that case. So, I'm not unbiased on the matter.

And I address this issue directly in my brief. And that is: if the Foreign Intelligence Surveillance Act, which is the statute in question, as applied to the specific facts and circumstances of the NSA program, unconstitutionally -and these are the Supreme Court's words - impairs the ability of the president to protect our nation against attack, then that part of the statute itself is unconstitutional.

And court cases and legal opinion, including in the Clinton administration have said, that a president in those circumstances has at least the right, if not the duty, to decline to execute that statute. Now, whether or not that's the case with the NSA program depends entirely on what the facts of the intercepts of the communications are. So we argued in our brief, among other things, that the court cannot decide that issue unless the court itself has the classified facts on what's going on in the program. So I would reject that argument by the ACLU.

CONAN: Larry?

ABRAMSON: Mr. Cunningham, it's Larry Abramson. Classified information comes up in court cases all the time. We just had the Moussaoui case. And there are procedures, as you know. There's the Classified Information Procedures Act that defines how this information can be discussed in court. That only people with certain clearances can see that information and there are secure facilities where it can be viewed. Why can't that process be used in order to litigate these cases?

Mr. CUNNINGHAM: It's a great question, Larry, and there are two answers to it. There's the Constitutional or legal answer and then there's the policy answer. I litigated a number of classified information procedures cases for the Clinton administration, and that, as you know, is applicable in criminal prosecutions.

Because there, the courts have said under our Constitution that the executive branch's Constitutional authority - to answer the question of one of your previous callers - to protect classified information comes into direct conflict with the criminal defendant's right to a full and complete defense under a number of amendments to our Constitution.

So, even in those cases, the court is not ever in a position to be able to tell the government you must release these secrets. But what the court can do is tell the government if you don't release the secrets we're going to let the defendant go free.

In a civil case, such as the cases here challenging the National Security Agency wiretap program, there's not been judged by the courts to be that balance on the other side. In other words, sometimes the invocation of the privilege hurts the government and sometimes it hurts the private citizen.

Because, in some cases, the government, as I suspect may be the case here, would need these facts out there to defend its actions and win the lawsuit. The - both administrations I've served, the Clinton and the Bush administration, have considered what they would call a (unintelligible), some sort of federal law akin to the Classified Information Procedures Act that could be used in civil cases.

And I think that's an idea worth exploring. Although, even there in many cases - excuse me - the secrets are going to simply be too sensitive. And I think the Supreme Court would say that the government's need to protect the country is going to outweigh the need of any particular civil litigant. And let me just add one thing too...

CONAN: I need...

Mr. CUNNINGHAM: Go ahead.

CONAN: ...to stop you just for a moment to say that we're talking about state secrets and federal courts and you're listening to TALK OF THE NATION, from NPR News. And, Mr. Cunningham, go ahead, then we'll get Mr. Weaver to come in.

Mr. CUNNINGHAM: Yeah, quickly. I was just going to add that there is another major difference between criminal and civil cases. And that is, civil cases go on, including federal government interest, in every single state court and federal court in the country. And I think there's been a sense under both administrations I've served that it would be very difficult to have a process that was enforced. You can't even really get security clearances easily for state court judges across all those cases. Whereas in the criminal context that Larry mentioned, it's a much more controllable universe of federal judges.

CONAN: Mm-hmm. William Weaver?

Prof. WEAVER: Well, I hate to disappoint Mr. Cunningham, but the privilege has been used in this administration more than any other administration. Depending on how you count it, it's been asserted publicly - in a public record between 19 and 21 times. The Reagan administration is also asserted at 19 times. So, indeed, the use of privilege in this administration is going to far outstrip the use in any other administration.

And as to his point about the difference between civil cases and criminal cases, I would just say that if you have a costless privilege that always wins, then what incentive is there not to use it beyond the narrow bounds for which it was formulated.

I mean, this privilege was designed to protect the national security, very narrow scope of the privilege, but since it costs nothing to assert it, then -and it always wins, you might as well just use it, right? So I think that civil litigants should just win the case and that the government should be forced to internalize the costs of asserting the privilege, which might make them more judicious in the way they use it.

CONAN: Mm-hmm. Mr. Cunningham?

Mr. CUNNINGHAM: Well, look, having this debate on the premise that the Bush administration has used the privilege more than the Clinton administration is like having a debate about how the United States has changed since Japan conquered us in World War II. It's simply factually inaccurate.

In fact, Professor Weaver's article was cited in the News Media & The Law, and they had to issue a retraction, saying, and I quote, "the figure came from the 2005 security report card" - the 23 figure that he just used - "published by openthegovernment.org. The privilege was actually invoked only seven times from 2001 to 2005, according to the corrected report card." So...

Prof. WEAVER: May I correct you...

CONAN: And then we're going to get off the numbers, because we're going to run out of time.

Prof. WEAVER: Yeah, let me correct you in that the Open The Government used the wrong figure from the article. The article was initially written in 2002. Since that time, the privilege has been used at least 19 times. I'm happy to send you the citations.

CONAN: All right.

Mr. CUNNINGHAM: I have the citations and most of those cases are distinguishable. But getting to the substantive point, I think the problem with the rule that the professor is suggesting, that the government always loses if it invokes the privilege is - just to cite the NSA example - if the government automatically lost that case, what the ACLU us asking this one federal judge in Detroit to do is to completely shutdown, by court order, the entire program of surveillance against al-Qaida.

Which Jane Harman, the Democratic ranking member of the House Intelligence Committee, Nancy Pelosi, Jay Rockefeller, all the Democratic leaderships have agreed is a necessary program. So I don't think that's the right solution to the problem. I do think it is worth looking at. Holding federal judges feet to the fire and asking them to be more engaged in the process of evaluating the government's claims, even though I think the Supreme Court has said repeatedly that they are not entitled to that, I think that they ought to do more of that.

CONAN: And I'm afraid we're going to have to leave it there. Bryan Cunningham, former deputy legal advisor to the NSA. And also William Weaver, professor of Law at the University of Texas at El Paso. Larry Abramson, with us here in studio 3A. This is TALK OF THE NATION, from NPR News.

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