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What are ‘State Secrets’?

Neither the U.S. Constitution nor the U.S. Code make mention of this powerful privelage. Instead, the ‘State Secrets’ privelage carries the weight of law by virtue of the many legal decisions, a.k.a. ‘precedents’, that have been established over centuries of court cases.

(I have mentioned the danger of ‘precedent’ before.)

How powerful is the State Secrets privelage/law?

William Weaver is a law professor and the senior advisor to an organization known as the National Security Whistleblowers Coalition. Weaver says, “There has never been an unsuccessful invocation of the state secrets privelage when national security is involved.” (source: Feds Go All Out to Kill Spy Suit, Wired.com, 02 May 2006)

In a world where all people are completely honest and unbiased, this would be an acceptable privelage to exercise. Alas, we hardly live in such a utopian world. Given this imperfect human nature, I refuse to believe that it is ever appropriate to give any person or agency the right to bypass judicial scrutiny. Sadly, this is precisely the right granted to the executive branch of government by the ’state secrets’ privelage.

Stephen Aftergood is a senior research analyst at the Federation of American Scientists, and director of that federation’s Project on Government Secrecy. Aftergood said, “In a nutshell, invoking the [state secrets] privelage shuts down the judicial process and it says that the courthouse doors are closed. In a society ruled by law, that is a subversive action.” (source: Feds Go All Out to Kill Spy Suit, Wired.com, 02 May 2006)

I couldn’t agree more. The judicial branch of government is one of the ‘checks and balances’ branches that is supposed to help ensure that government, overall, doesn’t take more power than was granted to it by law. Giving the executive branch this powerful means to escape accountability to the court is, in effect, granting the excecutive branch the right to do whatever it wishes and to never have to answer for, or even explain, it’s behavior.

If that doesn’t scare the pants off of you, please read those previous 4 paragraphs again!

Lest you think that I don’t understand how important it is for the government to conduct itself with a certain secrecy in certain circumstances, let me calm your concern in a word: FISA.

What is FISA?

FISA is an acronym for the Foreign Intelligence Surveillance Act of 1978. According to Wikipedia’s Foreign Intelligence Surveillance Act of 1978 article (a must read by anyone interested in the details that are seldom covered by mainstream media), FISA “prescribes procedures for the physical and electronic surveillance and collection of ‘foreign intelligence information’ between or among ‘foreign powers’.” And unlike the state secrets privelage/law, FISA is a part of the U.S. Code (50 U.S.C. §§1801-1811, 1821-29, 1841-46, and 1861-62).

So despite all the objectionary rhetoric to spew from our current administration, they do have a legal and timely way to obtain warrants for surveillance in their pursuit to protect America from further terrorist attacks.

So then, why doesn’t this adminstration use FISA to engage in warrantless surveillance? There is a FISA provision that allows them to do that. I think this is a key question that deserves to be examined and, if possible, answered!

You mean warrantless surveillance is legal?

Yes, but the conditions for engaging in surveillance without a court order are rather tightly focused:

(quoted verbatim from Wikipedia; bold emphasis is mine.)

Without a court order

The President may authorize, through the Attorney General, electronic surveillance without a court order for the period of one year provided it is only for foreign intelligence information; targeting foreign powers as defined by 50 U.S.C. §1801(a)(1),(2),(3) or their agents; and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.

The Attorney General is required to make a certification of these conditions under seal to the Foreign Intelligence Surveillance Court, and report on their compliance to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence.

Since 50 U.S.C § 1802 (a)(1)(A) of this act specifically limits warrantless surveillance to foreign powers as defined by 50 U.S.C. §1801(a) (1),(2), (3) and omits the definitions contained in 50 U.S.C. §1801(a) (4),(5),(6) the act does not authorize the use of warrantless surveillance on: groups engaged in international terrorism or activities in preparation therefore; foreign-based political organizations, not substantially composed of United States persons; or entities that are directed and controlled by a foreign government or governments. Under the FISA act, anyone who engages in electronic surveillance except as authorized by statute is subject to both criminal penalties and civil liabilities.

I suspect the administration doesn’t use FISA because their warrantless surveillance was not limited to foreign powers; I suspect this adminstration’s warrantless surveillance includes many, if not all, American citizens!

If this is the case, then opening the administration’s actions to FISA court scrutiny would reveal that, in fact, the warrantless surveillance that has been going on since as far back as 2002 (some contest this date as too late, asserting that the surveillance begain in 2000; that’s before the September 11th attacks!).

So why doesn’t the administration just start obeying the law and use FISA starting from now? As with so many other politically-motivated shenanigans, I think that the answer is largely a concern over money (yes, and other things like criminal convictions, impeachment, blah, blah, blah).

You see, FISA provides for significant financial penalties and awards for violations of its surveillance provisions. Consider this:

(quoted verbatim from Wikipedia)

Remedies for violations

Both the subchapters covering physical searches and electronic surveillance provide for criminal and civil liability for violations of FISA.

Criminal sanctions follows violations of electronic surveillance by intentionally engaging in electronic surveillance under the color of law or through disclosing information known to have been obtained through unauthorized surveillance. The penalties for either act are fines up to $10,000, up to five years in jail, or both.

In addition, the statute creates a cause of action for private individuals whose communications were unlawfully monitored. The statute permits actual damages of not less than $1,000 or $100 per day. In addition, that statute authorizes punitive damages and an award of attorney’s fees.

Similar liability is found under the subchapter pertaining to physical searches.

In both cases, the statute creates an affirmative defense for a law enforcement agent acting within their official duties and pursuant to a valid court order. Presumably, such a defense is not available to those operating exclusively under presidential authorization.

Imagine if the number of American citizens who were illegally wire-tapped was known? Imagine now that every one exercises their financial interest against the administration for having their Fourth Amendment Constitutional right violated?

The numbers alone are staggeringly large.

So for political reasons, I sadly suspect that the ’state secrets’ privelage will again win over any claims of Constitutional violations. If I’m right, we’re all in bigger trouble than most presently imagine.

So let’s hope I’m wrong and that the U.S. Constitution again resumes it’s ‘law of the land’ standing among our government officials and departments—especially the intelligence community!

Any other outcome should be seen as the threat that it is. And we, the people, need to re-discover the vigilance of our Founding Fathers in demanding that our Constitutional rights take precedence over any other consideration.

Ben Franklin implied that those who would sacrifice their rights for a promise of safety were fools. If he’s right then we in America have been fools for far too long. I’m ready to wise up; are you?