The US Congress moved a step closer Thursday
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 George W. Bush 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, 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.
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."
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
The White House has signaled that President 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.
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
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.
However, Gabor Rona, international legal director of the 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
US is in violation of its obligation under the International Covenant on Civil
and Political Rights to provide a remedy."
The privilege was first recognized by the US Supreme Court in 1953, in a case
later shown to have been bogus. It has been asserted since then by every US
administration, Republican and Democratic. But the Bush administration has increased
its use dramatically. It has raised the privilege in over 25 percent more cases
each year than previous administrations, and has sought dismissal in more than
90 percent 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.
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
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 US 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 dollars
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
US Supreme Court. At the time, the Inspector General of the Department of
Justice found that 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
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."
(Inter Press Service)