Another Interesting State Secrets Argument

By Benjamin Wittes
Friday, October 1, 2010, 5:38 PM

This morning, I had a bit of correspondence with an administration lawyer in response to my critique of the New York Times's state secrets editorial. This lawyer agreed with my argument, but made an additional one concerning the integrity of the state secrets invocation in this case that I had not previously considered. I found it very interesting and valuable and pass it on for readers to chew over.

Attacks on the use of the state secrets privilege in the Al Aulaqi case from outlets like the New York Times all operate at an abstract and general level; while paying lip service to the possibility that there are, in fact, state secrets that are worthy of protection, they pay no attention to the actual secrets that may be at issue in this case. But there is enough material in the public record here to permit some degree of analysis of the propriety of the assertion in this particular instance with specific reference to the specific secrets at issue. The following is the clearest and most straightforward, but by no means the only, example:

Al Aulaqi’s father’s complaint does not claim that his son cannot be targeted. He claims, rather, that the government cannot target him except “as a last resort to protect against concrete, specific and imminent threats or serious physical injury.” Elementary principles of standing law—even if one concedes next friend standing, which I most emphatically do not--thus mean that this suit cannot go forward unless Al Aulaqi does not, in fact, present a “concrete, specific and imminent threat” of the sort which would justify the government’s resort to force “as a last resort.” If he does present such a threat, after all, then he has suffered no injury from the allegedly illegal policy and there is thus no Article III case or controversy. Two critical threshold questions in the case are thus whether Anwar al-Aulaqi presents a “concrete, specific and imminent threat” to the U.S. and what tools short of killing him the government has at its disposal if he does.

It seems quite obvious that the first of these threshold issues, at least, necessarily implicates state secrets: the nature of our intelligence about what Al Aulaqi is up to, where he is, and the like. These aren’t the kind of state secrets that get opponents of the privilege mad--like protecting allegedly illegal activity or particularly aggressive covert actions. This is, rather, the core of American intelligence collection and would inevitably expose not merely the most sensitive sources and methods--as well as the diplomatic discussions with whatever country Aulaqi might happen to be in (presumably Yemen)--but also the contents of the intelligence itself.

I have not thought this argument through entirely, but it seems compelling to me on its face. I’d be curious where readers think the logical gap, if any, lies. Distilled to its essence, the argument amounts to the assertion that absent recourse to what are obviously state secrets of the most legitimate sort, Al Aulaqi's father cannot possibly establish his standing. Is that wrong? And if so, how can he establish it?