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Secrecy Privilege Allows Government to Block Suits

Alex Constantine - February 4, 2008

" ... The administration is attempting to use the privilege as a back-door immunity to obtain dismissal of any case that attempts to put the NSA wiretapping issue in front of a judge ... "

Privilege can protect national security,
but it can be abused to shut off access to court

Scripps Texas Newspapers

Americans of all political persuasions should view with profound misgivings the increasing tendency of the administration to use state secrets to avoid disclosing classified information in civil lawsuits. This has been an ongoing problem that apparently has become worse during the George W. Bush administration.

According to the Washington Post, there have been modest increases in the use of the state secrets privilege every decade since the 1960s. But some legal scholars and members of Congress point out that the Bush administration has employed it excessively as it intervened in cases that could expose information about sensitive programs.

These programs include the rendition of detainees to foreign countries for interrogation and cases related to the National Security Agency's use of warrantless wiretaps. As the Post story relates, the privilege allows the government to argue that lawsuits -- and the information potentially revealed by them -- could damage national security. It gives judges the power to prevent information from reaching public view or to dismiss cases even if they appear to have merit.

In a speech on the Senate floor, Sen. Edward Kennedy, D-Mass., said greater congressional oversight is needed in the process because of the Bush administration's use of the privilege since 9/11 "has dramatically increased, and the harmful consequences of its irregular application by courts have become painfully clear."

The Bush administration has reportedly used the state secrets privilege substantially more, on a percentage basis, than previous administrations to block or dismiss lawsuits. One case in which the privilege was used was that of El-Masri v. Tenet. In that case, Khaled el-Masri, a German citizen, sued the U.S. government claiming that he was sent to Afghanistan for interrogation as part of a secret government program. The case was dismissed after government lawyers argued that Masri's civil claims could expose state secrets should CIA officials have to admit or deny the existence of the program or its details.

While some argue that an increase in the use of the state secrets can be justified because the country, being at war, has undertaken more secret operations. That is disputed by Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a nonprofit legal organization that has fought the Bush administration's secrecy efforts on the NSA surveillance program. Bankston said the state secrets privilege is being abused by the administration regardless of the number of times it has been invoked.

"The administration is attempting to use the privilege as a back-door immunity to obtain dismissal of any case that attempts to put the NSA wiretapping issue in front of a judge," said Bankston. "It is no secret that such a program existed."

Government has a need for this privilege to protect national security. However, this privilege should be used oh so sparingly since, in effect, it can close off access to the courts or prevent a fair hearing for those with legitimate grievances.

Whatever the merits of individual cases may be, the trend toward greater use of a secret stamp to keep information out of the courtroom and out of the public domain is dangerous. It can allow the government to hide or manipulate the use of information for its own ends, whether it relates to national security concerns are not.

Congress has grown increasingly wary -- and rightly so -- of the excessive power and secrecy that have been hallmarks of the Bush administration. A needed antidote is greater congressional oversight to ensure that this power is not being overused or abused. So far, Congress has not been as aggressive in asserting its own powers as it could and should have been.


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