April 29, 2009 | Commentary on Legal Issues, National Security and Defense

Keep Courts Out of It: National Security Policy Belongs in the Executive Branch and Congress

President Obama's embrace of the same legal doctrines as President Bush shows that, even between administrations of wide ideological divergence, the pendulum swings little, if at all.

The senator who once threatened to filibuster legislation that protected telecom companies from lawsuits for helping track terrorists has matured into a cooler-headed president responsible for ensuring the nation's security.

Perhaps a wider cooling off is in order.

Before Bush, the notion that security secrets shouldn't be disclosed in a courtroom was hardly controversial. And it was widely accepted that national security was the concern and responsibility of the executive and Congress, and only rarely the courts.

Yet we've grown accustomed to never-ending lawsuits seeking to disclose state secrets and undo national security measures approved by Congress and the president. One San Francisco judge actually ruled that an Islamic charity, shut down for funneling money to terrorists, can force the government to disclose the most sensitive details about how it keeps tabs on foreign terrorists and their domestic allies.

In another case, ACLU-backed plaintiffs are seeking to exact damages from a Boeing subsidiary they say handled the logistics for the Pentagon's rendition program, in which terrorists seized abroad were transferred to other countries for interrogation. They want details, too.

And two more cases, one against telecom companies and the other against government officials, challenge the government's post-9/11 terrorist surveillance efforts. Never mind that Congress passed a law over a year ago to kick these kinds of cases out of court on national security grounds.

That each of these cases, if allowed to proceed, stands to disclose vital state secrets is obvious; indeed, that's one of the reasons they were brought. The other is to raise the cost to businesses of cooperating with the government on national security.

The state secret privilege simply returns national-security policy to where it belongs -- the executive branch and Congress. There, activists are free to make their case without putting us all at risk.

Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.

About the Author

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

First appeared in USA Today