And the State Secrets Privilege strikes again. Yet another lawsuit has been dismissed on the grounds of the incredibly broad version of the State Secrets Privilege used by both Bush and Obama to ensure that there is no legal means of keeping the government from violating the Constitution.
A federal judge Tuesday threw out a lawsuit filed against the U.S. government and the FBI over the agency’s spying on Orange County Muslims, ruling that allowing the suit to go forward would risk divulging sensitive state secrets.
Comparing himself to Odysseus navigating the waters between a six-headed monster and a deadly whirlpool, U.S. District Court Judge Cormac Carney wrote that “the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”
The judge said that he reached the decision reluctantly after reviewing confidential declarations filed by top FBI officials, and that he was convinced the operation in question involved “intelligence that, if disclosed, would significantly compromise national security.”
I’d love to hear an explanation for why this would be true even if the usual process for handling such matters, the Classified Information Procedures Act, was followed. The courts handle classified information every single day and there is not a single instance that I am aware of where sensitive or damaging information has ever been released when those procedures are followed. There are many different ways to prevent the release of such information, including in camera and ex parte proceedings.
Here’s an idea: Why not expand FISA to give the Foreign Intelligence Surveillance Court the power not just to approve warrants but to hear cases involving violations of FISA as well? They can’t currently do that. But if the concern is over release of classified information, we have an entire court set up expressly for that purpose.
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