NSA, state secrets, and bonding: A suggestion

A government agency does something that is arguably illegal and ends up in court. Their attorney claims, perhaps truthfully, that in order to defend the case he would have to reveal facts about the agency's activities that must, in the interest of national security, remain secret. He accordingly asks the judge to dismiss the charges.

This situation--I'm thinking of litigation over the National Security Agency's wiretapping and related activities--raises a real problem. One can imagine a similar problem arising in a patent infringement suit when the defendant argues that, in order to show it is not infringing the patent, it would have to reveal a valuable trade secret. Our usual mechanism for settling legal disputes requires both sides to have free access to the relevant information; in some cases giving them such access could result in very large costs.

There is, I think, a fairly straightforward way in which we might deal with such situations. It depends on two assumptions. The first is that there is some responsible person--the President, the head of NSA, the research director of the corporation sued for patent infringement--who already knows the secret. The second is that the secret will expire within some predictable length of time. If the NSA is using top secret high tech to data mine phone records, it is unlikely to still be using the same method ten years from now.

Under my system, when the attorney asks for dismissal on grounds of state secrets or the equivalent, his request must include a time limit after which he agrees that the information will no longer be secret; the longer the time limit, the less plausible his claim and so the less likely the judge is to accept it. Prior to dismissing the claim, the judge asks the relevant responsible person, the one who already knows the secret, to testify under oath that the information does not confirm the other side's case, that revealing it would not result in a near certain verdict of guilty. When the time limit on the secret has expired the court takes up the case again, determines whether the testimony was true, and imposes penalties for perjury if appropriate.

Before taking the testimony the judge informs the witness that perjury in this particular situation is a capital offense. "Now, Mr. President, would you like to reconsider your position?"

That is, of course, an implausibly extreme version of the proposal. More generally, in order for the case to be dismissed, someone with the information must testify as to the implications of the information for the case, with penalties for false testimony severe enough to make it unlikely that he will be willing to perjure himself. In effect, he is bonding his testimony--in the limiting case with his head.

Obviously there are some practical problems, beginning with the fact that the person who knows the secret is probably not a lawyer. He should, however, have access to lawyers; it should not be that difficult for him to determine what sort of facts would or not result in his side losing.

How do we currently deal with such situations? One approach is to provide the secret information to the judge but not to the opposing side. But without the usual mechanisms of an adversarial trial, the judge may have a hard time telling how true or how complete the information he is given is. If he later discovers that what he was told was deliberately misleading, he has the option of imposing penalties for contempt of court, giving at least a weak version of my proposal.