The Bush code of secrecy

"It would be hard to overstate the significance of this proceeding," Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, said in an e-mail. "It is not just a dispute over surveillance. It is a test of our whole system of government. They are not only arguing that the courts cannot adjudicate the matter, but that Congress is powerless to limit the government's activities. If the administration prevails, then we will be well on our way to a different form of government in which executive authority is effectively unchecked."

Dozens of private class action lawsuits have been filed across the country against telecom companies this year, following news reports of domestic surveillance under Bush. On Monday, administration lawyers filed a motion to have all the lawsuits consolidated into one case in federal court in Washington, where they intend to seek dismissal. There is now also a growing list of state officials, from New Jersey to Missouri, subpoenaing information from telecom companies; the administration has already intervened in New Jersey citing state secrets privilege and will no doubt do so from coast to coast.

The Bush government has already killed several cases probing the darkest corners of its war on terror. In May, a lawsuit brought by Khaled El-Masri, a German citizen kidnapped by the CIA in 2004 and allegedly tortured in Afghanistan over a five-month period, was dismissed after the administration invoked the state secrets privilege. El-Masri was seeking remedy for what had turned out to be a case of mistaken identity: Eventually, after the U.S. government realized it had seized the wrong man, El-Masri's ordeal ended with him being flown to Albania and unloaded on a country road at dusk.

In his May 12 ruling, Judge T.S. Ellis noted that his decision to throw out the case was "in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri's complaint." Ellis further concluded that "if El-Masri's allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected ... must also agree that El-Masri has suffered injuries as a result of our country's mistake and deserves a remedy." He conceded that one would not be forthcoming from the U.S. court system.

"Terrorists can kill people and destroy property," Aftergood commented on Secrecy News, following the decision. "But they cannot undermine the rule of law, or deny injured parties access to the courts. Only the U.S. government can do that."

The Bush administration's aggressive deployment of state secrets claims bears no small resemblance to right-wing Senate Republicans threatening to wipe out Democratic filibustering of judicial nominees. It has become a "nuclear option" for the executive branch, one that aims to obliterate any judicial check on Bush's most central, most closely held tactics in the war on terror.

"It's clear from the last five years that the administration has the overall goal of reducing scrutiny of its actions in the national security realm," Kroger says. "These state secrets cases are part and parcel of that strategy."

It's a strategy that Vice President Cheney trumpeted again this week, while answering questions at a National Press Club luncheon in the nation's capital. Cheney reiterated his belief that fallout from the Watergate scandals and the Vietnam War beginning 30 years ago had allowed Congress "to encroach upon the powers and responsibilities of the president." When it came to conducting national security policy, he said, "it was important to go back and try to restore that balance," and to return to a "strong presidency." He cited the administration's terrorist surveillance program as a prime example.

Robert Dallek, the presidential historian, says that "invoking the national security card" during tumultuous times is not unusual. Lyndon Johnson hoped to suppress antiwar dissent during Vietnam when he spoke of "nervous Nellies" -- a phrase Dallek likens to the refrain Republicans use today for ridiculing Democrats who would "cut and run" from Iraq. Richard Nixon, during Watergate, and Ronald Reagan, during the Iran-Contra scandal, both fired off a barrage of executive privilege claims in the name of national security in order to evade scrutiny.

But Dallek says the Bush administration's seizure of power has gone beyond the pale, including its assault on judicial review. "It has been a central theme from the start of the administration, and they're pushing it like crazy," he says. "Historians will pay a lot of attention to their abuse of separation of powers -- the expansion of executive power and a return to the notion of 'the imperial presidency.'"

Sen. Pat Leahy of Vermont, the ranking Democrat on the Judiciary Committee, has been a fierce critic of the Bush administration's consolidation of power, particularly on the subject of domestic surveillance. "Each day seems to expose another example of the Bush-Cheney administration's methodic march for expanded executive power," said Leahy, in a statement to Salon. "The list keeps getting longer, whether it's this obsessively secret administration classifying historical documents, or assigning its own interpretations to laws passed by Congress. Now the administration is adamant about avoiding any type of judicial review of its domestic warrantless wiretapping program. This administration has a paranoid aversion to openness and accountability, making it all the more important to ensure that our system of checks and balances is working as it was intended."

For the moment, at least, that burden rests on the shoulders of Judge Walker in San Francisco. Kroger says the administration's broad efforts to smother fundamental questions of constitutional law under state secrets claims could provoke judges to scrutinize how far the doctrine should really reach. He expects that in all likelihood the question will not be decided short of the Supreme Court.

"The Bush administration is asserting, in essence, that the courts simply can't play any role here," Kroger says. "That's a radical departure, and if it's true, a huge part of the government's war on terror is off limits."

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