Analysis: Secrets and “need to know”
Saturday, May 30th, 2009 11:05 am | Lyle Denniston
Analysis
NOTE: Nearly a quarter-century ago, in Navy Department v. Egan, the Supreme Court ruled that the President has broad constitutional power — even apart from any grant of power by Congress — to decide who gets access to classified secrets. The Obama Administration, continuing efforts begun in the Bush Administration, has been maneuvering toward a new test — very likely aiming at the Supreme Court – of the authority to decide who has a “need to know” secret data. A filing late Friday night before a federal judge in California intensified that effort.
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The Justice Department, facing an impatient federal judge’s threat to rule summarily that the federal government has engaged in illegal electronic wiretrapping on a Muslim organization within the U.S., asked the judge Friday night to issue a direct order to disclose secret data over the government’s objections that would then set the stage for an appeal on issues “of extraordinary constitutional significance.”
Among those issues is whether a court has any authority to order disclosure of “state secrets” for use by a private party in a damages lawsuit, whether a law allowing such damages lawsuits overrides the government’s claim of a “state secrets” privilege against disclosing classified information, and whether a judge, not the government, can decide what a private party “needs to know” from secret government data for use in a lawsuit. [much more in the article]
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