Washington DC, May 3, 2007 - The National Security Archive and several
other public interest organizations argued yesterday, in an amicus
curiae brief filed in the 9th Circuit Court of Appeals, that courts
should not simply defer to the government's assertion of the state
secrets privilege but rather must independently evaluate the claim that
a case must be dismissed to protect national security. In particular,
courts must determine whether the material at issue is actually secret,
whether it is necessary to the case, and whether the potential harm from
disclosure justifies dismissing the case.

Amici filed the brief in support of parties challenging the National
Security Agency's warrantless wiretapping program. The government is
appealing a ruling by Judge Vaughn Walker of the Northern District of
California last year denying the government's motion to dismiss on state
secrets grounds a case originally brought by various plaintiffs against
AT&T and other telecom companies for their alleged role in the
wiretapping. Amici argue that Judge Walker properly rejected the
government's invocation of the privilege after conducting an independent
assessment of the state secrets claim-including by reviewing classified
information in camera -- and finding that the program in question is
"hardly a secret." Hepting v. United States, 439 F. Supp. 2d 974, 994
(N.D. Cal. 2006).

National Security Archive general counsel Meredith Fuchs commented: "We
want judges to remember that they have an independent role in assessing
state secrets privilege claims. Important cases shouldn't be dismissed
lightly."

Even if a court were to determine that a case involved a real secret,
amici further argued, the court must weigh the potential harm from
disclosure against the public interest in permitting the case to
proceed: "The perilous shield of state secrecy should be given judicial
imprimatur only when a court balances the national security risks of
disclosure against the harm of closing the courthouse doors to allegedly
unconstitutional action." This approach is necessary to prevent the
government from using a state secrets claim to unilaterally remove
government activities from judicial scrutiny for improper reasons,
including to conceal constitutional violations.

Other amici on the brief include: the Project on Government Oversight
(POGO), the Project on Government Secrecy of the Federation of American
Scientists, Public Citizen, and the Rutherford Institute. Pro bono legal
assistance in the drafting of the brief was provided by members of the
National Litigation Project of the Allard K. Lowenstein International
Human Rights Clinic at Yale Law School, including Jonathan M. Freiman
and four Yale Law School students, Edward Diskant, Nicole Hallett,
Daniel Noble, and Patrick Christopher Toomey.