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To what extent is memory subject to the state secrets doctrine?

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Memories are very personal things, over which we feel an intimate sense of ownership. Some people, such as spies, are sworn to secrecy over this or that incident, but, as one event or another washes over us, we typically aren't responsible one way or another for them. They are the historical cloth out of which we are cut. They are what makes us who we are.

This isn't science fiction. Who else could possibly own one's memory, anyway?

One would think that, at the very least, one could testify under oath about whether something did or did not in fact occur, through no fault of one's own, as part of one's personal historical record to establish one's relative guilt or innocence. Or, maybe not - the second of the two cases, argued before the Ninth Circuit Court of Appeals in San Francisco last week, concerned a situation that could have been culled from a legal theorist's note book, and which seems the more interesting of the two cases.

Uh, that memory is classified, your honor

That case, Al Haramain v Bush, had been consolidated with the other, EFF v. AT&T, due to common issues of law and fact, since both cases address the tricky legal issue of how a citizen may establish "standing" to sue the government for illegal warrantless surveillance when that very surveillance is considered by the executive branch to be a state secret.

The cases differ in one important respect, however. Whereas in EFF the evidence of illicit government snooping is purely circumstantial, based on the testimony of an AT&T employee's description of an NSA safe room located in San Francisco, in Al Haramain the plaintiffs appear to have, through sheer Bush administration stupidity, direct evidence of allegedly warrantless government surveillance.

That evidence, though, exists now in the memory of the plaintiffs and their attorneys. To what extent should the courts allow testimony of human recollection, even if only to establish legal standing, when that recollection itself concerns top secret information, and is potentially subject to the state secrets privilege?

Al Haramain, a defunct Saudi Islamic charity with an American branch formerly based in Ashland, Oregon, had been accused of maintaining ties to Al Qaeda. At one time, in those frenzied years after the 9/11 attacks when the group realized that it was being watched by the FBI, the foundation had sought guidance from the DOJ on how to stay off of whatever terrorist watchlists were then floating in government circles.

Inadvertently, in August 2004, during the course of whatever legal sparring went on between the foundation's attorneys and the government, the government handed over to the organization a call log, stamped Top Secret on every page. The calls were between the foundation's director and its attorneys - communications that themselves might well be covered by attorney-client privilege.

Copies of the call log circulated within the charity and even back to the foundation's headquarters in Saudi Arabia, until eventually the FBI realized its mistake and demanded the return of the document and whatever copies could be found, but nothing came of it until late 2005 when the New York Times broke the story on a massive NSA surveillance operation that, at least in part, targeted American citizens.

The organization then realized the nature of the logs, and filed a lawsuit in February 2006 alleging that it had been subject to illicit surveillance by the NSA. Of course, by then The Document, as it is now known, existed for purposes of litigation in the recollections of those who had read it.

The attorney for the government in the case, Thomas Bondy, argued vehemently that those recollections themselves should be barred, even to establish a threshold issue such as standing, because to do so would be the equivalent of allowing The Document, which is stored in a secure location in San Francisco and transported under armed guard, itself into evidence.

Bondy, much as Gregory Garre had in the EFF case, argued that once the government asserts the state secrets privilege, the case must be dismissed. It is, for all intents and purposes, an absolute bar to litigation, he claimed.

And that in a nutshell is the problem - does the state secrets privilege protect even unconstitutional state behavior? If the only requirement to assert the privilege, as the government claims, is that a judge - in secret, of course - determine the existence of a secret program, no constitutional analysis need follow. Under this logic, national security will always trump the Bill of Rights.

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