So in response to a lawsuit filed by the ACLU, a US federal judge in Michigan has ruled that the NSA program of warrantless wiretapping of US citizens is unconstitutional and must be halted. Reading the actual ruling, Judge Anna Diggs Taylor reviews a large number of cases where the government has asserted what is known as the “State Secrets Privilege.” This is a common law legal doctrine that allows a government to ask for evidence to be ruled inadmissible in court if the revelation of the evidence would be harmful to the state. There is a wikipedia article on state secrets. Judge Taylor’s ruling cites cases going back as far as 1875: “The seminal decision in this line of cases is Totten v. United States 92 U.S. 105 (1875)” – a US civil war spying case. Judge Taylor quotes the imporant 1953 US Supreme Court ruling in United States vs Reynolds, 345 U.S. 1 (1953)
The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. Reynolds, 345 U.S. at 8.
The Chief Justice further wrote:
In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. Reynolds, 345 U.S. at 11.
A quick glance through the Canadian and U.S. constitutions shows a distinct lack of any mention of the phrases “National Security” and “State Secrets” but there appear to be a large number of people who don’t think the ideas are abhorrent and reprehensible so I guess they are unlikely to go away any time soon. Right. Given that they are going to be around, I think their use needs to be made more difficult and high profile. I personally think that any attempt to use them in a legal sense should require a document approving the use, signed by the elected head of government, the leader of the opposition, and at least one member of a group of judges who are cleared to see anything relating to the use of such a tool.