The lack of serious review by some judges of these secrecy claims make one believe it is possible that some judges would uphold a state secrets defense even if the state claimed that it would reveal a grandmother's apple pie recipe as long as they:

1) Formally claimed the state secrets privilege in an affidavit.

2) This affidavit was filed by the head of the relevant department claiming the privilege.

3) The head of this department actually personally reviewed said documents or information.

In summary, the view of the current administration is that this defense simply has no limits.

There are a couple of important points that people should know about the current use of this defense.

The defense is supposed to be invoked only if evidence would be revealed during the course of the proceedings that would threaten national security. The current administration is invoking this defense even when the plaintiffs (as in the CCR and ACLU NSA eavesdropping cases) don't need and have not requested any additional information from the government to prove their case because the government has publicly admitted all of the necessary facts.

If the state invokes this defense, courts should not and traditionally have not thrown out the entire case, but have allowed it to continue without access to the sensitive security-related information. This is actually the exact approach taken by the court that first established the modern version of the defense.

The state secrets defense has been around in its modern form since 1953 and it may be important to have. Indeed, few people would claim that in absolutely no case should the government be able to say that the information a trial would release would simply be too sensitive. A great example would be the release of our most guarded nuclear secrets. Either way, the use of the doctrine, if you feel that it should exist, must be in the absolute narrowest of cases. Courts already handle classified information. Judges are already allowed to view sensitive material in special review sessions in which only they review the material and then release the acceptable information to the parties (who in turn are prevented from releasing the excerpted information that they receive).

What many people simply do not realize is that the current administration is abusing this defense to hide its own missteps and incompetence in a way and on a scale that is unprecedented. During the Vietnam War and the Cold War the state secrets privilege was only invoked on a far more limited basis. Indeed, the current administration has invoked the defense more than any two term president in the history of our nation. Although the attacks of September 11th require additional protections for national security, it is hard to imagine that this defense it is more necessary than during a forty-four year cold war with a power that could have wiped every city in our nation off the map with the push of a button from a fortified, nuclear proof bunker.

But you may say that this issue will only affect me if somebody might ever mistake me for a terrorist - which could simply never happen because I am not Middle Eastern.

Well you should know that the privilege has been invoked in a case that affects anybody who sends an email, fax, speaks on the phone, or communicates electronically in any way. The administration has filed the defense in the suits by the Center for Constitutional Rights and the American Civil Liberties Union to stop the recently discovered illegal NSA wiretapping program. If the current administration gets its way and the defense stands, it appears that there is nothing that can be done in Congress or the courts to stop a plainly illegal program.

If the President is abusing our rights, the courts are precluded from enforcing them, and the President ignores the laws that Congress passes as well as the Constitution itself - what becomes of our democracy - let alone our three branches of government?

What can you do about this abuse?

The first thing that you can do is that you can be aware.
The second thing is that you can tell your friends.
The third thing is to keep reading more about the current administration's coordinated campaign to limit the American people's ability to access their courts for redress for their injuries (FOIA requests, tort deform).

One last thing that you should know is that in the plane crash case that established the doctrine, the recently declassified accident report of the crash revealed that the crew had been negligent in not instructing the civilians on how to bail out, and that the plane had been a consistent maintenance problem. Not the biggest state secrets that I can think of.

Of course, if you find yourself being whisked away into a dark interrogation room on your way through JFK airport and are detained for ten days, it seems that there's nothing that you or our courts are allowed to do about it. My best advice is to have a copy of the constitution with you. At least that way you have some reading materials while you're being detained or on a plane to be tortured in Syria. I guess you could also show it to the US government officials if you want, but why even bother? Your version of that document is sadly - according to the current administration - an out-of-date edition.

To read a blog posting by a lead attorney litigating the NSA case for the Center for Constitutional Rights click here.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at cdugger@drummajorinstitute.org.

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy