WASHINGTON — In federal courts and on Capitol Hill, challenges are brewing to a key legal strategy President Bush is using to protect a secret surveillance program that monitors phone calls and e-mails inside the United States.
Under grilling from lawmakers and attack by lawsuits alleging that Bush authorized the illegal wiretapping of Americans, the White House has invoked a legal defense known as the “state-secrets” doctrine — a claim that the president has inherent and unchecked power to shield national security information from disclosure, either to plaintiffs in court or to congressional overseers.
The administration also invoked the privilege last week in a civil fraud case against former Qwest chief executive Joe Nacchio and four other former company officials. In a 12-page declaration filed in Denver federal court, Michael McConnell, director of national intelligence, argued that disclosure of certain information could “cause damage to the foreign relations and the national defense of the United States.”
The principle was established a half-century ago when, ruling in a wrongful-death case brought by the widows of civilians killed in a military plane crash, the Supreme Court upheld the Air Force’s refusal to provide an accident report to the plaintiffs. The government contended releasing the document would compromise information about a secret mission and intelligence equipment.
Sen. Arlen Specter of Pennsylvania, the Judiciary Committee’s senior Republican, believes the White House has gone too far in invoking state secrets to halt civil lawsuits.
“We have the authority to define the state-secrets doctrine,” Specter says. “I don’t think that the simple assertion of state secrets ought to be the end of the matter.”
Specter; Sen. Edward Kennedy, D-Mass.; and others are working on legislation that would direct federal judges to review the president’s state-secrets claims and allow cases with merit to go forward.
Practices among judges vary. Some accept state-secrets claims outright, dismissing cases on the government’s word. Others read the privileged information and decide for themselves but almost invariably side with the government, according to legal scholars.
The draft legislation is modeled on procedures used in criminal cases that involve classified information. The Classified Information Protection Act lets judges review classified information that a criminal defendant wants to use in his defense but which could compromise national security if it were released publicly.
The law allows the court to delete classified passages, substitute summaries of the information or substitute a statement of facts that the classified information would prove.
The measure could become part of the Senate’s new eavesdropping law, expected to be voted on in early December, the aides said.
Denver Post staff writer Andy Vuong contributed to this report.
