July 7, 2008

July 7, 2008 | Commentary on Legal Issues, Terrorism

State Secrets? Who Needs 'Em?

If Congress needed a kick in the pants to get moving on intelligence reform, this is it: A San Francisco judge ruled Wednesday that the federal government's program to spy on terrorists and their affiliates is not protected by the "state secrets" privilege. This means that government officials and companies that helped to implement the program may be forced to testify about its structure and operations.

If those aren't state secrets, what is?

But according to Judge Vaughn Walker, there's no such thing as a state secret when the government's foreign intelligence operations so much as touch U.S. soil. That's a huge loophole for America's enemies.

Let's look at the case that led Judge Walker to his bizarre ruling. The plaintiff is the al-Haramain Islamic Foundation, an outfit that even the United Nations has identified as an al-Qaeda front. This particular branch was located in Ashland, Oregon, and ran an Islamic school, Internet café, and money-transfer business. It also held itself out as a humanitarian charity helping poor Muslims in Africa and Asia.

Yet somehow, say diplomats, the alms kept winding up in terrorists' hands. Money collected in Oregon helped finance terror attacks in Israel, Kenya, and Indonesia, among others, according to Associated Press reports. Their targets were frequently U.S. embassies and Americans.

Today, Al-Haramain is all but defunct in the United States. But one thing lives on: Its lawsuit to force federal agents to disclose the most sensitive details about how they were able to uncover its terrorist ties and shut it down.

Wednesday's ruling is a huge step toward making that happen. Once it satisfies a few minor procedural hurdles, the court will lay out the particulars of how it can legally siphon top-secret information from the government and its private-sector helpers -- mostly telecom providers like AT&T.

This was bound to happen sooner or later. Civil-liberties groups have brought over 40 suits like this against the government and the telecom firms, and many plaintiffs went shopping for sympathetic judges eager to strike a political blow against the Bush administration. Until now, these lawsuits were "just" an expensive nuisance that made the private sector wary of cooperating with government efforts to protect the American public. But now things stand to really get dangerous.

Congress could cut that risk down to nothing in an instant. All it needs do is pass legislation that pulls these super-sensitive suits out of federal courts.

The Senate did just that in February. It passed a bill to grant telecom companies immunity for their work with the government. But liberal leaders in the House refused to go along with the plan.

It took months of pushing, but a group of conservative House Democrats -- the "Blue Dogs" -- finally forced the recalcitrant House leadership (including Speaker Nancy Pelosi of San Francisco) to move forward on the measure in June. That logjam broken, a compromise bill passed by an overwhelming margin: 293 to 129.

But now things are gummed up in the Senate. Privacy activists -- many of them parties to the lawsuits -- are lobbying hard to block passage of the bill. So far, they've succeeded. What was expected to be a cakewalk to passage before the July 4 holiday has now bogged down. The Senate will take up the bill again when it returns to town next week. Expect more delays: liberals like Chris Dodd and Russ Feingold, goaded by the activists and wary of handing anything that even looks like a win to the Bush administration, are threatening to filibuster any bill that ends the lawsuits.

Enough is enough. It's time to stop playing politics with intelligence and national security.

People on both sides of the debate agree that the telecom companies are being dragged into court for doing nothing more than what the government asked and assured them was completely legal. If any laws were broken -- and there's good reason to believe none were -- it was the government's fault. It's not fair to hold these companies liable for trying to help protect the nation.

Nor is it sensible. How will they respond next time the government comes calling?

Congress has the power to exercise oversight of the executive branch, including reviewing intelligence operations. It also has the power of the pen and the purse to encourage the executive branch to change course. Exercising those powers can be dangerous -- if something goes wrong, like another terrorist attack, you're on the hook -- but that's what accountability is all about.

Instead of making the tough and probably unpopular choices, some members of Congress would rather leave that to the White House and the courts, while amping up their criticism of what the administration actually does. They blow hot air and "taking a stand" against the companies that answered the call when the country needed their help, to the adoration of activists and editorial pages that never note their failure to actually do anything. It's good political theater but lousy policy.

This can't go on forever. The jig will be up when a court forces a party to divulge details about our most sensitive intelligence operations -- which could happen any day now. At that point, delay will have become failure to act, and Congress will have to take the heat.

Andrew Grossman is a Senior Legal Policy Analyst at the Heritage Foundation.

About the Author

Andrew M. Grossman Visiting Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in National Review Online