Bill Fisher The World According to Bill Fisher 1/31/08

Alarmed by the Bush Administration’s increasing use of the so-called “state secrets privilege” to keep politically embarrassing lawsuits against the government from ever coming before a judge, Congress is stepping in to help ensure that people with grievances can have their cases heard.

A new bill sponsored by Senators Edward M. Kennedy, a Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed. Both are members of the Senate Judiciary Committee.

The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation.

The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25% more cases each year than previous administrations, and has sought dismissal in over 90% more cases.

The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.

The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act,” according to Senator Kennedy’s office.

In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”

The proposed new law “clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege,” Kennedy says.

Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege.”

The bipartisan Constitution Project found that “legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government.”

And a group of leading constitutional scholars wrote to Congress emphasizing that there “is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process.”

The absence of such rules has resulted in the dismissal of a number of high-profile lawsuits against the government. For example:

A German citizen, Khaled el-Masri complained that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of “extraordinary rendition.” His suit was dismissed because he would not be able to make his case except by using “[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations” — and the CIA could not defend itself against the allegations “without using privileged evidence.”

In another widely publicized case, the Justice Department asserted the state-secrets privilege in successfully seeking to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later. A Canadian Government commission found after a two-year investigation that Arar had no connection with terrorists and awarded him compensation of $10 million and an apology.

And perhaps the best-known of such cases involved Sibel Edmonds, a former translator at the Federal Bureau of Investigation (FBI), who was fired for reporting security breaches and possible espionage within the Bureau. Edmonds unsuccessfully appealed her case to the U.S. Supreme Court. At the time, the Inspector General of the Department of Justice (DOJ) found that Ms. Edmonds’ firing was an act of retaliation. She has since become the head of a group advocating for greater legal protections for whistleblowers who are involved in national security work.

Legal scholars and legal rights advocates have been outspoken on the Bush Administration’s use of the state secrets as a shield behind which it can conceal virtually any activity.

Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told us, “The Administration has argued on the merits that the President has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can’t even rule on that assertion of power because the alleged criminal violation is a ‘state secret’.”

Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told us, “The expansion of executive power for its own sake has been a political priority of the Bush Administration since the beginning. Consistent with this agenda, the Administration has been conspicuous in its defense of the executive’s secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest. This is true not just for state secret claims, but for the full scope of conceivable executive privilege claims.”

He added, “The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress.”

Steven Aftergood, head of the Government Secrecy Program at the Federation of American Scientists, says the Kennedy-Specter legislation “would go a long way towards restoring confidence that the privilege is being properly used, and would help deter abuse.” He told us, “The government’s ‘say-so’ would not be enough.

He added, “The state secrets privilege has been used to derail legal challenges to government policies on detention, rendition, and interrogation, among other outstanding issues. There has to be a better way. There is no incentive for the executive to regulate itself or to curtail its use of the privilege.”

And Gabor Rona, International Legal Director of advocacy group Human Rights First, told us, “When courts dismiss cases alleging human rights violations on state secrets grounds, and leave no alternative for redress, the U.S. is in violation of its obligation under the International Covenant on Civil and Political Rights to provide a remedy.”