State secrets and the secret secrets that hide them

Trying to get at the truth in the domestic surveillance lawsuits is tough when anything you say can or even remember may be declared a state secret in the wiretapping lawsuits:

“Is it the government’s position that when our country is engaged in a war that the power of the executive when it comes to wiretapping is unchecked?” Judge Harry Pregerson asked a government lawyer. His tone was one of incredulity and frustration.

Gregory G. Garre, a deputy solicitor general representing the administration, replied that the courts had a role, though a limited one, in assessing the government’s assertion of the so-called state secrets privilege, which can require the dismissal of suits that could endanger national security. Judges, he said, must give executive branch determinations “utmost deference.”

“Litigating this action could result in exceptionally grave harm to the national security of the United States,” Mr. Garre said, referring to the assessment of intelligence officials.

That is, when we say "terrorist," you say "case dismissed." It's a patriotic Pavlovian imperative.

Terrorist -- salivate -- take a pellet.

The New York Times reports that all three judges were inclined to hear "one or both" of the cases at issue.

But to sue, you must have standing. To have standing, you must have proof you've been targeted, and that's a state secret.

“Whether plaintiffs were subjected to surveillance is a state secret,” the Justice Department said in a recent brief ... “and information tending to confirm or deny that fact is privileged.”

In a the case brought by an Islamic charity, the plaintiffs had mistakenly received a government document the charity claims proved they had been subjected to surveillance. It has since been reclaimed by the government. Even their memories of the document are secret.

Judge Pregerson, appointed by President Jimmy Carter, appeared irritated with the government’s arguments, and he became frustrated when Mr. Garre said he could not provide simple answers to questions about the scope of a recently amended 1978 law, the Foreign Intelligence Surveillance Act. Mr. Garre said it was a complicated law.

“Can’t be any more complicated than my phone bill,” Judge Pregerson said.

Can't say. It's a state secret.