491

Military Ignoring Mental Illness
May 14, 2006

HARTFORD, Conn. – U.S. military troops with severe psychological problems have been sent to Iraq or kept in combat, even when superiors have been aware of signs of mental illness, a newspaper reported for Sunday editions.

The Hartford Courant, citing records obtained under the federal Freedom of Information Act and more than 100 interviews of families and military personnel, reported numerous cases in which the military failed to follow its own regulations in screening, treating and evacuating mentally unfit troops from Iraq.

In 1997, Congress ordered the military to assess the mental health of all deploying troops. The newspaper, citing Pentagon statistics, said fewer than 1 in 300 service members were referred to a mental health professional before shipping out for Iraq as of October 2005.

Twenty-two U.S. troops committed suicide in Iraq last year, accounting for nearly one in five of all non-combat deaths and the highest suicide rate since the war started, the newspaper said.

Some service members who committed suicide in 2004 and 2005 were kept on duty despite clear signs of mental distress, sometimes after being prescribed antidepressants with little or no mental health counseling or monitoring, the Courant reported. Those findings conflict with regulations adopted last year by the Army that caution against the use of antidepressants for “extended deployments.”

“I can’t imagine something more irresponsible than putting a soldier suffering from stress on (antidepressants), when you know these drugs can cause people to become suicidal and homicidal,” said Vera Sharav, president of the Alliance for Human Research Protection, a New York-based advocacy group. “You’re creating chemically activated time bombs.”

Although Defense Department standards for enlistment disqualify recruits who suffer from post-traumatic stress disorder, the military also is redeploying service members to Iraq who fit that criteria, the newspaper said.

“I’m concerned that people who are symptomatic are being sent back. That has not happened before in our country,” said Dr. Arthur S. Blank, Jr., a Yale-trained psychiatrist who helped to get post-traumatic stress disorder recognized as a diagnosis after the Vietnam War.

The Army’s top mental health expert, Col. Elspeth Ritchie, acknowledged that some deployment practices, such as sending service members diagnosed with post-traumatic stress syndrome back into combat, have been driven in part by a troop shortage.

“The challenge for us … is that the Army has a mission to fight. And, as you know, recruiting has been a challenge,” she said. “And so we have to weigh the needs of the Army, the needs of the mission, with the soldiers’ personal needs.”

Ritchie insisted the military works hard to prevent suicides, but said that is a challenge because every soldier has access to a weapon.

Commanders, not medical professionals, have final say over whether a troubled soldier is retained in the war zone. Ritchie and other military officials said they believe most commanders are alert to mental health problems and are open to referring troubled soldiers for treatment.

“Your average commander doesn’t want to deal with a whacked-out soldier. But on the other hand, he doesn’t want to send a message to his troops that if you act up, he’s willing to send you home,” said Maj. Andrew Efaw, a judge advocate general officer in the Army Reserves who handled trial defense for soldiers in northern Iraq last year.


Mentally Unfit, Forced To Fight – a report in three parts, of which the following is one…

Mentally Unfit, Forced To Fight
May 14, 2006
By LISA CHEDEKEL And MATTHEW KAUFFMAN

Despite a congressional order that the military assess the mental health of all deploying troops, fewer than 1 in 300 service members see a mental health professional before shipping out.

Once at war, some unstable troops are kept on the front lines while on potent antidepressants and anti-anxiety drugs, with little or no counseling or medical monitoring.

And some troops who developed post-traumatic stress disorder after serving in Iraq are being sent back to the war zone, increasing the risk to their mental health.

These practices, which have received little public scrutiny and in some cases violate the military’s own policies, have helped to fuel an increase in the suicide rate among troops serving in Iraq, which reached an all-time high in 2005 when 22 soldiers killed themselves – accounting for nearly one in five of all Army non-combat deaths.

The Courant’s investigation found that at least 11 service members who committed suicide in Iraq in 2004 and 2005 were kept on duty despite exhibiting signs of significant psychological distress. In at least seven of the cases, superiors were aware of the problems, military investigative records and interviews with families indicate.

Among the troops who plunged through the gaps in the mental health system was Army Spec. Jeffrey Henthorn, a young father and third-generation soldier, whose death last year is still being mourned by his native Choctaw, Okla.

What his hometown does not know is that Henthorn, 25, had been sent back to Iraq for a second tour, even though his superiors knew he was unstable and had threatened suicide at least twice, according to Army investigative reports and interviews. When he finally succeeded in killing himself on Feb. 8, 2005, at Camp Anaconda in Balad, Iraq, an Army report says, the work of the M-16 rifle was so thorough that fragments of his skull pierced the barracks ceiling.

In a case last July, a 20-year-old soldier who had written a suicide note to his mother was relieved of his gun and referred for a psychological evaluation, but then was accused of faking his mental problems and warned he could be disciplined, according to what he told his family. Three weeks later, after his gun had been handed back, Pfc. Jason Scheuerman, of Lynchburg, Va., used it to end his life.

Also kept in the war zone was Army Pfc. David L. Potter, 22, of Johnson City, Tenn., who was diagnosed with anxiety and depression while serving in Iraq in 2004. Potter remained with his unit in Baghdad despite a suicide attempt and a psychiatrist’s recommendation that he be separated from the Army, records show. Ten days after the recommendation was signed, he slid a gun out from under another soldier’s bed, climbed to the second floor of an abandoned building and shot himself through the mouth, the Army has concluded.

The spike in suicides among the all-volunteer force is a setback for military officials, who had pledged in late 2003 to improve mental health services, after expressing alarm that 11 soldiers and two Marines had killed themselves in Iraq in the first seven months of the war. When the number of suicides tumbled in 2004, top Army officials had credited their renewed prevention efforts.

But The Courant’s review found that since 2003, the military has increasingly sent, kept and recycled troubled troops into combat – practices that undercut its assurances of improvements. Besides causing suicides, experts say, gaps in mental health care can cause violence between soldiers, accidents and critical mistakes in judgment during combat operations.

Military experts and advocates point to recruiting shortfalls and intense wartime pressure to maintain troop levels as reasons more service members with psychiatric problems are being deployed to the war zone and kept there.

“What you have is a military stretched so thin, they’ve resorted to keeping psychologically unfit soldiers at the front,” said Stephen Robinson, the former longtime director of the National Gulf War Resource Center. “It’s a policy that can do an awful lot of damage over time.”

Army officials confirmed that 22 soldiers killed themselves in Iraq, and three in Afghanistan, in 2005. The Army suicide rate was about 20 per 100,000 soldiers serving in Iraq – nearly double the 2004 rate, and higher than the 2003 rate that had prompted alarm. Three Marines also committed suicide in Iraq last year.

The military does not discuss or even identify individual suicide cases, which are grouped with other non-combat deaths. The Courant identified suicide victims through Army investigative reports and interviews with families.

Although The Courant determined that a spate of six suicides occurred within eight weeks last year, from late May to July, there is no indication that the military took steps to respond to the cluster.

While the 2005 jump in self-inflicted deaths was as pronounced as the 2003 spike that had stirred action, Army officials said last week that there were no immediate plans to change the approach or resources targeted to mental health. They said they had confidence in the initiatives put in place two years ago – additional combat stress teams to treat deployed troops and increased suicide prevention programs.

Col. Elspeth Ritchie, the top psychiatry expert for the Army surgeon general, said that while the Army is reviewing the 2005 suicides as a way to gauge its mental health efforts, “suicide rates go up and down, and we expect some variation.”

Ritchie said the mental health of troops remains a priority as the war enters its fourth year. But she also acknowledged that some practices, such as sending service members diagnosed with PTSD back into combat, have been driven in part by a troop shortage.

“The challenge for us … is that the Army has a mission to fight. And as you know, recruiting has been a challenge,” she said. “And so we have to weigh the needs of the Army, the needs of the mission, with the soldiers’ personal needs.”

But The Courant’s investigation shows that troubled soldiers are getting lost in the balance:

Under the military’s pre-deployment screening process, troops with serious mental disorders are not being identified – and others whose mental illness is known are being deployed anyway.

A law passed in 1997 requires the military to conduct an “assessment of mental health” on all deploying troops. But the “assessment” now being used is a single mental health question on a pre-deployment form filled out by service members.

Even using that limited tool, troops who self-report psychological problems are rarely referred for evaluations by mental health professionals, Department of Defense records obtained by The Courant indicate. From March 2003 to October 2005, only 6.5 percent of deploying service members who indicated a mental health problem were referred for evaluations; overall, fewer than 1 in 300 deploying troops, or 0.3 percent, were referred.

That rate of referral is dramatically lower than the more than 9 percent of deploying troops that the Army itself acknowledges in studies have serious psychiatric disorders.

In addition, despite its pledges in 2004 to improve mental health care, the military was more likely to deploy troops who indicated psychological problems in 2005 than it was during the first year of the war, the data show.

The Courant found that at least seven, or about one-third, of the 22 soldiers who killed themselves in Iraq in 2005 had been deployed less than three months, raising questions about the adequacy of pre-deployment screening. Some of them had exhibited earlier signs of distress.

Also, at least three soldiers who killed themselves since the war began were deployed despite serious mental conditions, including bipolar disorder and schizophrenia.

The military relies increasingly on antidepressants, some with potentially dangerous side effects, to keep troops with known psychological problems in the war zone.

Military investigative reports and interviews with family members indicate that some service members who committed suicide in 2004 and 2005 were kept on duty despite clear signs of mental distress, sometimes after being prescribed antidepressants, including a class of drugs known as SSRIs.

In one case, a 26-year-old Marine who was having trouble sleeping was put on a strong dose of Zoloft, an SSRI that carries a warning urging doctors to closely monitor new patients for suicidal urges. Last April, within two months of starting the drug, the Marine killed himself in Iraq.

Some service members who experienced depression or stress before or during deployments to Iraq described being placed on Zoloft, Wellbutrin and other antidepressants, with little or no mental health counseling or monitoring. Some of the drugs carry warnings of an increased risk of suicide, within the first weeks of their use.

Those anecdotal findings conflict with regulations adopted last year by the Army cautioning that antidepressants for cases of moderate or severe depression “are not usually suitable for extended deployments.”

Also, the military’s top health official, Assistant Defense Secretary William Winkenwerder Jr., indicated in testimony to Congress last summer that service members were being allowed to deploy on psychotropic medications only when their conditions had “fully resolved.”

The use of psychiatric drugs has alarmed some medical experts and ethicists, who say the medications cannot be properly monitored in a war zone. The Army’s own reports indicate that the availability and use of such medications in Iraq and Kuwait have increased since mid-2004, when a team of psychiatrists approved making Prozac, Zoloft, Trazodone, Ambien and other drugs more widely available throughout the combat zone.

“I can’t imagine something more irresponsible than putting a soldier suffering from stress on SSRIs, when you know these drugs can cause people to become suicidal and homicidal,” said Vera Sharav, president of the Alliance for Human Research Protection, a patient advocacy group. “You’re creating chemically activated time bombs.”

The military is sending troops back into combat for second and third tours despite diagnoses of PTSD or other combat-related psychological problems – a practice that some mental health experts fear will fuel incidents of suicide and violence among troops abroad and at home.

Although Department of Defense standards for enlistment in the armed forces disqualify recruits who suffer from PTSD, the military is redeploying service members to Iraq who fit that criteria. The practice, which military experts concede is driven partly by pressure to maintain troop levels, runs counter to accepted medical doctrine and research, which cautions that re-exposure to trauma increases the risk of psychological problems.

At least seven troops who are believed to have committed suicide in 2005 and early 2006, and one who has been charged with killing a fellow soldier, were serving second or third tours in Iraq. Some of them had exhibited signs of combat stress after their first deployments, according to family members and friends.

Some soldiers now serving second tours in Iraq say they are wrestling with debilitating PTSD symptoms, despite being placed on medications.

Jason Sedotal, a 21-year-old military policeman from Pierre Part, La., returned home in March 2005 after seven months in Iraq, during which a Humvee he was driving rolled over a land mine, badly injuring his sergeant. After completing his tour, Sedotal was diagnosed with PTSD and placed on Prozac, he said.

Last October, after being transferred to a new unit, he was shipped back to Iraq for a one-year tour. During a short visit home last week, he described being wracked by nightmares and depression and convinced that “somebody’s following me.” When he conveyed his symptoms to a doctor at Fort Polk in Louisiana last Tuesday, he said, he was given a higher dose of medication and the sleeping pill Ambien and told that he was to go back to Iraq.

“I can’t keep going through this mentally. All they do is fill me up on medicine and send me back,” he said. “What’s this going to do to me in the future? I’m going to be 60 years old, hiding under my kitchen table? I’m real scared.”

More than 378,000 active-duty, Reserve and National Guard troops have served more than one tour in Iraq or Afghanistan, representing nearly a third of the 1.3 million troops who have been deployed, according to Department of Defense statistics. That repeat exposure to combat could dramatically increase the percentage of soldiers and Marines who experience PTSD, major depression or other disorders, some experts say.

Recent studies have estimated that at least 18 percent of returning Iraq veterans are at risk of developing PTSD after just one combat tour.

“The [Department of Defense] is in the business of keeping people deployable,” said Cathleen Wiblemo, deputy director for health care for the American Legion. “What the consequences of that are, we haven’t begun to see.

“This is uncharted territory. You’re looking at guys being extended or sent back multiple times into an extremely stressful situation, which is different than past wars. … I think the number of troops that will be affected, it will be a huge number.”

Preserving The Force

Military officials insist they have made aggressive efforts to improve mental health services to troops in Iraq in the past two years. After the spate of suicides in 2003, the Army dispatched a mental health advisory team, which issued a report recommending additional combat-stress specialists to treat troops close to the front lines, and encouraging training and outreach to reduce the stigma associated with mental health problems.

A follow-up report, released January 2005, cited the drop in suicides in 2004 as evidence that the Army’s efforts were successful. It also highlighted a decline in the number of soldiers who were evacuated out of Iraq for mental health problems – from about 75 a month in 2003 to 36 a month in 2004. In 2005, an average of 46 soldiers were evacuated each month, Army data show.

Overall, barely more than one-tenth of 1 percent of the 1.3 million troops who have been deployed to Iraq and Afghanistan have been evacuated because of psychiatric problems.

Both advisory team reports recommended that soldiers with mental health problems be kept in the combat zone in order to improve return-to-duty rates and help soldiers avoid being labeled unfit.

“If you take people out of their unit and send them home, they have the shame and the stigma,” said Ritchie, the Army’s mental health expert.

But with the suicide rate climbing, the emphasis on treating psychologically damaged soldiers in the war zone is raising new questions.

“You think it’s a stigma to be sent home from the Iraq war? That might be the line they’re using” to justify retaining troops, said Dr. Arthur S. Blank Jr., a psychiatrist who formerly served as national director of the Veterans Administration’s counseling centers. “I wouldn’t say that.”

Mental health specialists who have served in Iraq acknowledge that their main goal, under military guidelines, is to preserve the fighting force. Some have grappled with making tough calls about how much more stress a soldier can handle.

“You have to become comfortable with things we wouldn’t normally be comfortable with,” said Bob Johnson, a psychologist in Atlanta who counseled soldiers last year as chief of combat stress control for the Army’s 2nd Brigade. “If there were an endless supply [of soldiers], the compassionate side of you just wants to get these people out of here. They’re miserable. You can see it in their faces. But I had to kind of put that aside.”

Army statistics show that 59 soldiers killed themselves in Iraq through the end of last year – 25 in 2003, 12 in 2004, and 22 in 2005. Twelve Marine deaths also have been ruled self-inflicted.

The only confirmed Connecticut suicide is that of Army Pfc. Jeffrey Braun, 19, of Stafford, who died in December 2003. His father, William Braun, told The Courant he still did not have a full explanation of what happened to Jeffrey, but said, “I’ve chosen not to pursue it or question it. It’s over and done with.”

Military data show that deaths in Iraq due to all non-combat causes, such as accidents, rose by 32 percent from 2004 to 2005. Of the more than 500 non-combat deaths among all service branches since the start of the war, gunshot wounds were the second-leading cause of death, behind vehicle crashes but ahead of heart attacks and other medical ailments.

While many families of service members who died of non-combat causes say they are not familiar with military deployment policies, some question whether the military knowingly put their loved ones at risk.

Among them are relatives of Army Spec. Michael S. Deem, a 35-year-old father of two, who was deployed to Iraq in January 2005 despite a history of depression that family members say was known to the military. Shortly before Deem deployed, a military psychiatrist gave him a long-term supply of Prozac to help him handle the stress, his wife said.

Just 3½ weeks after he arrived in Iraq, Deem died in his sleep of what the Army later determined was an enlarged heart “complicated by elevated levels of fluoxetine” – the generic name for Prozac.

Family members of some troops whose deaths have been labeled suicides complain that the military has given them limited information about the circumstances of the deaths. Some have had to wait more than a year for autopsies and investigative reports, which they say still leave questions unanswered.

Barbara Butler, mother of Army National Guard 1st Lt. Debra A. Banaszak, 35, of Bloomington, Ill., said she has trouble understanding why her daughter would have taken her own life in Kuwait last October, as the military has determined. She said that while Banaszak, the single mother of a teenage son, was proud to serve her country and had not complained, the stresses of the deployment may have exacerbated her depression.

“She was used to being in charge and being a leader, but never in these circumstances,” said Butler. “If the Army is right that she did this, it was nothing she would have done ordinarily. It was that war that brought it about.”

Recognizing Trouble

Some autopsy and investigative reports obtained by The Courant make clear that service members who committed suicide were experiencing serious psychological problems during deployment.

In the months before Army Pfc. Samuel Lee, of Anaheim, Calif., killed himself in March 2005, an investigative report says, the 19-year-old had talked to fellow soldiers about a dream in which he tried to kill his sergeant before taking his own life, and of kidnapping, raping and killing Iraqi children. Three times, a soldier recounted in a sworn statement, Lee had pointed his gun at himself and depressed the trigger, stopping just before a round fired.

But two of Lee’s superiors gave statements saying they did not realize Lee was having trouble until the day he balanced the butt of his rifle on a cot, put his mouth over the muzzle and fired.

But a number of other reports on 2004 and 2005 suicides indicate that military superiors were aware that soldiers were self-destructing.

Among them was Army Staff Sgt. Cory W. Brooks, 32, of Philip, S.D., who shot himself in the head on April 24, 2004. In sworn statements, a major and first lieutenant acknowledged they had conducted “counseling” with Brooks, and a first sergeant “detailed his knowledge of SSG Brooks’ suicidal ideations.”

Brooks’ father, Darral, said he believes his son’s death stemmed from a combination of personal and combat-related stress, and he does not blame the military for retaining him in Iraq.

“Cory was a dedicated soldier. He wanted to be there,” he said. “If his captain told him to walk off a cliff, he’d do it.”

But in other cases in which superiors retained a soldier who was experiencing mental health problems, families are not so forgiving.

Ann Scheuerman, mother of the soldier who shot himself after his suicide note was discounted by Army officials, said her family has had a frustrating time getting the military to acknowledge mistakes in the way her son was treated.

“We wanted to make sure that whatever protocol they have in place is used, and if it doesn’t work, fix it,” Scheuerman said. “And to date, we’re just not getting anything at all.

“Nothing can bring back my son,” she said. “But if something can be done to prevent any more deaths, then if I offend a couple of people, I’ll go ahead and apologize up front. Go ahead and come after me, but something needs to be done.”

Family members of Jeffrey Henthorn, the Choctaw, Okla., native, are concerned that the Army ignored blatant warnings that Henthorn was suicidal.

An investigative report into Henthorn’s death contains statements indicating that Henthorn’s “chain of command” was aware that he had tried to harm himself in November 2004 – by slashing his arm “intentionally, in a [horizontal] manner” – in the weeks leading up to his second deployment to Iraq, while he was stationed at Fort Riley in Kansas.

Then, soon after his deployment in December, a distressed Henthorn took his gun into a latrine in Kuwait and charged it, in what fellow soldiers feared was a suicide gesture. Although his superiors at the scene grabbed the weapon away, his platoon sergeant returned the gun the same day, after talking to Henthorn for about a half-hour, according to a sworn statement. The platoon’s first lieutenant was notified, but there is no indication that Henthorn was referred for a mental health evaluation or counseling.

Eighteen days later, after crossing into Iraq with his unit, Henthorn finished what he had started.

“If you lock yourself in a latrine for 10 minutes with your gun and threaten to hurt yourself, you don’t just get your gun back. You get relieved of duty and sent home,” said Henthorn’s father, Warren, who is still struggling to understand what happened to his only son.

“It’s the same as Vietnam – all they care about is the numbers in the field,” he said. “That’s all that matters, having the numbers.”

Ritchie insisted the military is working hard to prevent suicides, which she said is a challenge, given that soldiers have access to weapons.

“When you go back, in retrospect, there may be warning signs,” she acknowledged.

Addressing The Courant’s findings, she added, “What you don’t see from that are the other cases that perhaps had the same warning signs and were kept in [the combat] theater and went on to do OK in their job.”

While they would not comment on particular cases, Ritchie and other military officials said they believe most commanders are alert to mental health problems and open to referring troubled soldiers for treatment. It is commanders, not medical professionals, who have final say over whether a troubled soldier is retained in the war zone.

“I think the majority of our commanders are very receptive,” Ritchie said.

But some service members say commanders’ sensitivity to mental health issues varies.

“As a practical matter, the quality … of the military’s mental health care professional is uneven,” said Maj. Andrew Efaw, a judge advocate general officer in the Army Reserve who handled trial defense for soldiers in northern Iraq last year. “Likewise, the understanding of mental health issues by commanders may also be spotty.”

He said commanders weighing whether a service member should be retained have to be mindful of how their troops will perceive the decision.

“Your average commander doesn’t want to deal with a whacked-out soldier. But on the other hand, he doesn’t want to send a message to his troops that if you act up, he’s willing to send you home,” Efaw said.

Some troops and their families say the military has not made good on its pledge to make mental health care easily accessible in the field.

Summer Lipford of Statesville, N.C., said she urged her son, Pfc. Steven Sirko, to talk to a counselor in April of last year, after he complained in a phone call from Iraq that he was having nightmares, losing weight and not sleeping.

“I asked Steven, `If you’re having dreams that are so [messed] up, why don’t you go talk to somebody?'” Lipford recalled. “He said, `Yeah, Mom, like that’s gonna happen.’ He said it was an act of God to get to see somebody.”

Four days later, Sirko, a 20-year-old medic, injected himself with vecuronium, an anesthetic that causes muscular paralysis, and died of an accidental overdose, according to what the military has told Lipford.

Some returning troops acknowledge that their own fear of being stigmatized kept them from seeking psychological help during deployments. Despite the military’s efforts to improve mental health care, soldiers’ perceptions of a stigma associated with seeking such care remained unchanged between 2004 and 2005, with more than half of the soldiers surveyed by Army teams expressing concerns that they would be viewed as weak.

Matthew Denton, a Camp Pendleton Marine and helicopter mechanic, said he spent most of his six-month deployment in 2005 quietly contemplating his own death aboard a ship in the Persian Gulf.

“My head was in a scary place. I remember thinking, `I can’t believe I’m working on a $14 million aircraft. I just don’t care about this,'” he said. “When I’d come out of my daze, I was worried about messing up and endangering the life of my guys.”

Denton, 30, said his depression was easy to keep secret – pre- and post-deployment health screenings were self-reported, and commanders hustling Marines through six-month rotations never probed his mental state.

Now back home, Denton, who is being treated for depression, isn’t sure whether he managed to stay below the radar – or whether there was any radar to stay below.


duh…

Clinton outperformed Bush
May 12, 2006

(CNN) — In a new poll comparing President Bush’s job performance with that of his predecessor, a strong majority of respondents said President Clinton outperformed Bush on a host of issues.

The poll of 1,021 adult Americans was conducted May 5-7 by Opinion Research Corp. for CNN. It had a margin of sampling error of plus or minus 3 percentage points.

Respondents favored Clinton by greater than 2-to-1 margins when asked who did a better job at handling the economy (63 percent Clinton, 26 percent Bush) and solving the problems of ordinary Americans (62 percent Clinton, 25 percent Bush).

On foreign affairs, the margin was 56 percent to 32 percent in Clinton’s favor; on taxes, it was 51 percent to 35 percent for Clinton; and on handling natural disasters, it was 51 percent to 30 percent, also favoring Clinton.

Moreover, 59 percent said Bush has done more to divide the country, while only 27 percent said Clinton had.

When asked which man was more honest as president, poll respondents were more evenly divided, with the numbers — 46 percent Clinton to 41 percent Bush — falling within the poll’s margin of error. The same was true for a question on handling national security: 46 percent said Clinton performed better; 42 percent picked Bush.

Clinton was impeached in 1998 over testimony he gave in a deposition about an extramarital sexual relationship with White House intern Monica Lewinksy. He was later aquitted by the Senate.


490

Administration cites state secrets in bid to derail spy lawsuit
By DAVID KRAVETS

SAN FRANCISCO – As lawmakers demand answers about warrantless electronic eavesdropping on Americans, the Bush administration says its secretive program’s constitutionality cannot be challenged.

The government is taking that position in seeking the dismissal of a lawsuit filed in federal court here against AT&T Inc. over its alleged involvement in the surveillance program adopted after the Sept. 11, 2001 terror attacks.

The federal government is invoking the “state secrets privilege” in arguing that the lawsuit must be thrown out because it threatens to divulge information that is deemed critical to national security.

“The state secrets privilege permits the government to protect against the unauthorized disclosure in litigation of information that may harm national security interests,” the Justice Department wrote to the judge presiding over the lawsuit filed by the San Francisco-based Internet privacy advocate Electronic Frontier Foundation.

The government announced that position in a legal brief late last month and is expected to expand on its arguments in an upcoming filing.

The tactic, first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit, has been increasingly invoked by federal lawyers seeking to shield the government from scrutiny by the courts.

Legal experts say it usually prevails.

“The state secrets privilege is sometimes called the ‘nuclear option,'” said Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists. “In almost every case, it terminates the lawsuit.”

He suspects the San Francisco case will meet the same fate.

The government invoked the state secrets privilege to defeat a similar lawsuit in 1979 that accused the National Security Agency of illegally spying on Americans.

Lawmakers erupted Thursday when USA Today reported the NSA was secretly collecting the records of phone calls by millions of ordinary Americans to build a database of all calls within the country.

The revelation renewed debate about whether Americans’ privacy rights were being violated. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., announced he would demand phone companies to appear before the panel.

President Bush quickly weighed in. “We’re not mining or trolling through the personal lives of millions of innocent Americans,” he said.

The president confirmed in December that the NSA has been conducting warrantless surveillance of calls and e-mails thought to involve al-Qaida terrorists.

Experts said the Bush administration has turned often to the state secrets defense, from espionage cases and patent disputes to routine employment discrimination lawsuits.

On Friday, citing the state secrets defense, the government urged a federal judge in Virginia to block a lawsuit filed by a German national who says he was illegally held in a CIA-run prison in Afghanistan for four months and tortured.

The Supreme Court upheld the defense as recently as January, when it rejected an appeal from a former covert CIA officer who accused the agency of race discrimination.

The high court first recognized the doctrine in 1953, when it dismissed a lawsuit against the government brought by family members of people killed in a plane wreck while testing secret electronic surveillance equipment.

Gregory Sisk, an expert on the state secrets doctrine at the St. Thomas School of Law in Minneapolis, Minn., said legal precedent dictates that judges should give the “utmost deference” to the government when it raises the privilege.

“The thesis is that the courts lack the competence to second-guess the executive on military needs or national security threats,” he said.

Electronic Frontier Foundation’s lawsuit, filed in January, differs slightly from past cases in that it does not name the government, instead targeting AT&T.

The group accuses the telecommunications giant of cooperating with the NSA to make all communications on AT&T networks available to the spy agency without warrants.

Legal experts suggest it’s possible for the judge to rule on whether the president possesses wartime powers to authorize warrantless eavesdropping in the United States without disclosing any classified or sensitive material.

“I’m not surprised that the defense is being asserted,” said Carl Tobias, a professor at the University of Richmond School of Law. “There’s no reason necessarily that the case should be dismissed.”

AT&T, the San Antonio-based telecommunications giant, says it is following all applicable laws.

U.S. District Judge Vaughn Walker has scheduled a hearing Wednesday to determine whether documents supplied to the Electronic Frontier Foundation by a former AT&T technician should remain under seal.

The case is based largely on the technician’s documents, which the technician and EFF assert show that the NSA is capable of monitoring all communications on AT&T’s network after the NSA installed equipment at AT&T offices in San Francisco and elsewhere.

The case is Hepting v. AT&T Inc., 06-0672.