>> Saturday, April 26, 2008
"The Bush Administration then moved to dismiss Al Haramain’s case, citing the “state-secrets privilege,” a controversial legal doctrine that can be used to prevent the introduction of evidence that might jeopardize national security. Judges tend to show deference when the executive branch invokes state secrets; courts have rejected the privilege on fewer than six occasions since it was first recognized by the Supreme Court, in 1953. In that case, U.S. v. Reynolds, the widows of three civilian engineers who died in the crash of an Air Force B-29 sued for negligence. The government would not turn over the accident report, asserting that it contained information about the plane’s secret electronic equipment. However, when the report was declassified, in the nineties, there was no mention of secret electronic equipment. It did reveal that the plane lacked standard safeguards to prevent the engine from overheating—the very negligence that the widows had alleged."
"According to a 2005 study by William Weaver and Robert Pallitto, political scientists at the University of Texas at El Paso, the Bush Administration has claimed the state-secrets privilege in recent years with “offhanded abandon.” By Weaver and Pallitto’s count of reported instances, the privilege was invoked fifty-five times in the half century before 2001; it has been used more than two dozen times in the years since. Its heavy use has drawn criticism from members of Congress, including Senator Arlen Specter, the senior Republican on the Judiciary Committee. “We’re going to look back at this period of time two decades from now and see a vast expansion of executive authority,” Specter told me this month. “And a big part of it is done by the state-secrets doctrine. Do I think in some cases that the government uses it inappropriately? Absolutely.”
"In October, Bernabei wrote a letter to the Justice Department. The attorneys representing Al Haramain had been dealing with a novel quandary of legal ethics. If they had a reasonable belief that any telephone conversation with Seda or Buthi might be monitored by the N.S.A., could they talk to their clients without violating attorney-client confidentiality? Bernabei requested confirmation that the government was not intercepting her “written or oral communications” with her clients. Two weeks later, she received a response from the lawyers at the Justice Department. They wouldn’t confirm or deny."
from an interesting article in the new yorker on a vignette in the illegal wiretapping scandal.