WE’VE GOT A (STATE) SECRET

By William Fisher

Congress yesterday moved a step closer to reining in the legal practice that the government has used to block lawsuits by whistleblowers and victims of “extraordinary rendition,” as well as actions that would embarrass the administration.

By an 11-8 vote, the Senate Judiciary Committee passed the State Secrets Protection Act, a measure introduced by Sen. Edward M. Kennedy, Democrat of Massachusetts, and Arlen Specter, a Republican from Pennsylvania. Specter. Specter, the committee’s most senior minority member, was alone among the panel’s nine Republicans to vote in favor of approving the bill.

The measure would establish new rules that would allow judges to review government evidence supporting its claims that bringing a case to civil trial would involve disclosure of classified state secrets and thus compromise national security.

The bill now goes to the full Senate for a vote, though its timing and outcome remain unclear. A similar bill has been introduced in the House of Representatives by Congressmen Jerrold Nadler, Democrat from New York, and Tom Petri, a Wisconsin Republican.

The White House has signaled that President George W. Bush will veto the legislation if it passes both houses of Congress.

The new bill would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed.

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," Senator Kennedy said.

Under the proposed measure, when the government claims the state secrets privilege, it will be required to submit an affidavit explaining why the information sought should remain secret. If the court agrees that certain evidence is privileged, it must order the government to produce unclassified or blacked-out versions of the sensitive information if doing so would not harm national security.

Judges would be authorized to rule against the government if it refuses to produce this documentation.

The attorney general would be required to report to the House and Senate Intelligence and Judiciary committees every time the government claimed the state secrets privilege.

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 courts have generally accepted such government assertions.

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 per cent more cases each year than previous administrations, and has sought dismissal in more than 90% of 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.

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.”

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 to the court 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 exposed CIA practices -- 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.

Another case 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.

Legal scholars and civil rights advocates have been outspoken against the Bush Administration’s use of the state secrets privilege 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 IPS, “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 IPS that the Bush 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.”

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, told IPS, “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 IPS, “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.”

But Attorney General Michael Mukasey said he believes Congress probably lacks the authority to alter the state secrets privilege because it is rooted in the Constitution "and is not merely a common law privilege."

He said the bill would transfer responsibility for making national security
judgments from the executive branch to the courts. He contends that federal judges do not have “the constitutional authority nor the institutional expertise to assume such functions."