First, the state secrets doctrine. The government cannot raise a defense against litigation based on state secrets unless the matter is in fact still secret. Once the secret is out, even if its revelation is one that came about through improper means, the defense is no longer available. This has caused the government problems when using surveillance to fight terrorism, as many people believe their civil liberties have been infringed, and have sued in court. In fact, the very big news on that matter was the recent Michigan ruling, which I have detailed on this blog (1) (2) (3) (4) (5). (And which has inspired other rulings, see this ruling where a federal judge in Oregon has rejected the government's attempt to block a lawsuit against the NSA program - although summary judgement was not granted for plaintiffs.)

In the meantime, the state of New Jersey has argued that the NSA program that was the subject of the Michigan case violates the state’s consumer protection laws. An excerpt from the end of the article: "The courts have been split on [the state secrets doctrine] argument: A judge in Chicago agreed with the government that state secrets would be exposed if a case there went forward there, but another judge in San Francisco said the surveillance is already so well known that there is was no danger of spilling secrets. A judge in Detroit last month ordered an immediate end to the program, saying it violates free speech and privacy rights as well as the separation of powers, but the plaintiffs agreed to keep the ruling on hold until the judge decides whether to issue a stay." (Folks, this sort of decision splitting is what happens when Congress is too vague in their wording, but I'm getting ahead of myself.)

Yes, the folks in the Garden State want a government program designed for national security shut down because they say it violates the rights of consumers (who would have no rights whatsoever if they were dead in a terrorist attack). You can decide for yourself if they have a case. As far as I’m concerned, this is clearly a preemption issue (1) (2) (3), but that’s not the subject of this post.

The point is, as you can see from the link, that the government cannot disclose details of the program without threatening national security, and are thus claiming the state secrets doctrine. And the response of anyone seeking to challenge such a doctrine is to say that some leaker has already revealed enough about the program to render that legal defense void.

That the link is a terrible blow to our security, that the leaker is a disgusting person who ought to be prosecuted for aiding and abetting an enemy in a time of war, does not affect the legal position that if it is no longer secret, then it is no longer secret. The path to the lack of secrecy is not relevant.

Next, consider the doctrine of ‘a reasonable expectation of privacy.’ (Or REP as law students write in the shorthand.) If there is a reasonable expectation of privacy in a matter, the government needs probable cause (usually but not always in the form of a warrant). One thing that has emerged from the HP corporate pretext scandal is that snooping on phone records is a common tool. If you follow that link, you’ll find data brokerage services have a wide variety of clients that buy all sorts of phone records and other personal data.

That this is a terrible blow to out privacy, and that the people who engage in this practice are disgusting and ought to be sued for vicarious liability for identity theft whenever possible, does not affect the legal position that if there is no longer a reasonable expectation of privacy, then there is no longer a reasonable expectation of privacy.

It seems that if the government does not have recourse to the state secrets doctrine defense, then by the same logic there are many matters where it would not need to show probable cause anyway.

Is this a good thing? I am not sure. I do know that some specification from the Congress on how much power they gave the President in the AUMF would be welcome. (A point I alluded to earlier.)

The Senate Judiciary Committee has, in the meanwhile, approved surveillance legislation that does not require a warrant for certain things. The linked-to pdf file is 41 pages long, so I'm not reading it tonight, but my off-the-cuff reaction is to think greater specification in legislation is always a good thing.