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.