State Secrets? Who Needs ‘Em?
Another injudicious move at a time of war.


If Congress needed a kick in the pants to get moving on intelligence reform, this is it: A San Francisco judge ruled Wednesday that the federal government’s program to spy on terrorists and their affiliates is not protected by the “state secrets” privilege. This means that government officials and companies that helped to implement the program may be forced to testify about its structure and operations.

If those aren’t state secrets, what is?

But according to Judge Vaughn Walker, there’s no such thing as a state secret when the government’s foreign intelligence operations so much as touch U.S. soil. That’s a huge loophole for America’s enemies.

Let’s look at the case that led Judge Walker to his bizarre ruling. The plaintiff is the al-Haramain Islamic Foundation, an outfit that even the United Nations has identified as an al-Qaeda front. This particular branch was located in Ashland, Oregon, and ran an Islamic school, Internet café, and money-transfer business. It also held itself out as a humanitarian charity helping poor Muslims in Africa and Asia.

Yet somehow, say diplomats, the alms kept winding up in terrorists’ hands. Money collected in Oregon helped finance terror attacks in Israel, Kenya, and Indonesia, among others, according to Associated Press reports. Their targets were frequently U.S. embassies and Americans.

Today, Al-Haramain is all but defunct in the United States. But one thing lives on: Its lawsuit to force federal agents to disclose the most sensitive details about how they were able to uncover its terrorist ties and shut it down.

Wednesday’s ruling is a huge step toward making that happen. Once it satisfies a few minor procedural hurdles, the court will lay out the particulars of how it can legally siphon top-secret information from the government and its private-sector helpers — mostly telecom providers like AT&T.

This was bound to happen sooner or later. Civil-liberties groups have brought over 40 suits like this against the government and the telecom firms, and many plaintiffs went shopping for sympathetic judges eager to strike a political blow against the Bush administration. Until now, these lawsuits were “just” an expensive nuisance that made the private sector wary of cooperating with government efforts to protect the American public. But now things stand to really get dangerous.

Congress could cut that risk down to nothing in an instant. All it needs do is pass legislation that pulls these super-sensitive suits out of federal courts.