Administration Weighs in on State Secrets in an Employee Firing Dispute

An amicus brief filed by the administration in a case involving a worker’s conversations with a lawyer is raising concern among liberals for its position on the state secrets privilege.

The case stems from a dispute over a fired employee’s conversations with a lawyer for his onetime employer, Mohawk Industries, according to the Fulton County Daily Report. The employee had claimed that several temporary employees were aliens who weren’t qualified to work in the United States, and he alleged that Mohawk’s outside lawyer pressured him to recant. Mohawk maintains the conversation is protected by attorney-client privilege, and it has a right to immediately appeal an adverse ruling on the question. (The ABA has sided with Mohawk’s arguments on the right to an immediate appeal, according to the Daily Report.)

The administration supported the employee, but its brief went beyond the attorney-client privilege issue, the New York Times reports. “The Obama administration’s brief argued, though no one had asked, that the state secrets privilege was rooted in the Constitution,” the story says.

The brief (PDF) said rulings about attorney-client privilege should not be subject to an immediate appeal, unlike rulings on the state secrets privilege, which is grounded in the Constitution. But the document omitted a recent ruling by U.S. District Judge Vaughn Walker of San Francisco that found the state secrets privilege is not rooted in the Constitution and that it was overridden by a 1978 law creating a foreign intelligence court, according to the Times.

“The filing has raised eyebrows and suspicions among liberals already disappointed that the Obama administration has not rejected a number of legal doctrines associated with the Bush administration,” the story says.