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100 Days: End the Abuse of the State Secrets Privilege

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During its tenure, the Bush administration sought to centralize power in the executive by any means necessary––both legal and extralegal––in order to carry out its policies without oversight by any other branch of government. In the name of the “war on terror,” the Bush administration spied on American citizens, tortured and abused detainees in Iraq, Afghanistan, Guantanamo and CIA “black sites,” overrode Congressional authority to make war, and carried out abuses of human rights around the globe in defiance of US and international law.

When Bush’s unconstitutional actions were challenged in court, the administration resorted more than any previous administration to the “state secrets privilege,” in attempts to prevent these challenges from ever being heard by a court of law and to preserve its own impunity for its illegal actions.

Unfortunately, the Obama administration has, to date, continued to follow along the path set by the Bush administration in utilizing the “state secrets privilege” to attempt to block judicial oversight of government policies and actions. Instead, the Obama administration, if it is to uphold its commitment to transparency, must reverse dangerous legal positions taken by the Bush administration in cases brought by victims and survivors of government abuses, including torture and extraordinary rendition.

The state secrets privilege is a common-law privilege that allows the head of an executive department to refuse to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relations interests if disclosed.  It originates in England, where the law allows the king or queen the “Crown Privilege,” which grants a monarch the absolute right to refuse to share information with Parliament or the courts. Furthermore, it comes from a system in which one branch of government, Parliament, that is ultimately not responsible to the courts. Thus, the state secrets privilege itself has a profoundly counter-democratic basis, and from a system that has a distinctly different basis than the U.S. system, which relies on checks and balances and the sharing of power between the courts and the political branches of government.

However, the Bush administration’s attempt to expand the state secrets privilege went far beyond what had been recognized as the state secrets privilege. The state secrets privilege, as some courts have recognized it, allows the executive to argue that distinct pieces of evidence should be barred from disclosure to a judge.. However, under the Bush administration, it became a routine mechanism utilized in attempts to block the cases – and silence the voices – of victims of government policies from being heard at all.

The Bush administration frequently invoked the privilege in order to dismiss cases altogether, attempting to use the privilege to provide a shield for torture, rendition, and other government abuses and criminal activities, and block embarrassing disclosures.

Previous uses of the state secrets privilege by the government have most commonly been at the discovery stage, asking the courts to deny people access to documents or witnesses. However, the Bush administration argued that to even answer a complaint by confirming or denying its allegations would risk the disclosure of secrets that could cause “exceptionally grave damage to the national security.” In doing so, it attempted to disable the courts from being able to check the power of the executive branch.

In other words, in addition to relying on the state secrets doctrine to an unprecedented degree, the administration tried to transform it from a narrow evidentiary privilege into something that looks like a doctrine of broad executive immunity, allied to the unitary executive theory propagated by John Yoo and other attorneys at the Bush administration Justice Department’s Office of Legal Counsel. This discredited and profoundly undemocratic theory suggests that the President, as Commander-in-Chief, cannot be bound by Congress or any law, national or international.

By invoking the State Secrets privilege in cases involving actions taken by the executive as part of its “war on terror,” (including extraordinary rendition, torture, illegal wiretapping and surveillance, and abuses by government contractors) the Bush Administration repeatedly tried to evade judicial review of its conduct. Furthermore, it sought to avoid a judicial ruling on whether there was any legal basis for its expansive view of its own power.

Silencing the Voices of the Victims

For example, in the case of Mohamed et al. v. Jeppesen Dataplan, Inc., Binyam Mohamed, a Guantánamo detainee subject to extraordinary rendition to Morocco and detention in Afghanistan and Pakistan where he suffered horrific torture, the Department of Justice entered the case to assert that the state secrets privilege should prevent the case from being heard. In this case, the assertion of the state secrets privilege meant that the government was seeking to prevent victims of torture from seeking justice from the government contractor that they allege knowingly flew them on illegal extraordinary rendition flights to countries where they would be subject to torture. Undoubtedly, Mohamed’s allegations, including the details of his torture under detention, where he was subject to beatings that resulted in unconsciousness and broken bones, his body, including his genitals, were sliced with a scalpel and hot liquids poured on his wounds, and he was threatened with rape, electrocution and death, are embarrassing for the government and its contractors, particularly if validated in a court of law. However, the state secrets privilege cannot be used merely to prevent accountability for and exposure of criminal and embarrassing government actions.

During the Bush administration, human rights lawyers repeatedly challenged the attempts to use the state secrets privilege to cover up abuses of human rights and privacy.

In one case, a German citizen, Khaled el-Masri, represented by the American Civil Liberties Union, alleged that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition" to a third country. His suit met a state secrets challenge from Bush administration lawyers – and was dismissed on the grounds 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."

In another key case of a torture victim being met with “state secrets,” the Bush Department of Justice asserted the state secrets privilege in an attempt to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen represented by the Center for Constitutional Rights who was detained in the U.S. in 2002 as he attempted to transfer at John F. Kennedy Airport to his flight home to Canada.  He was subject to “extraordinary rendition” to Syria, where he was tortured until his release a year later. A Canadian government commission found after a two-year investigation that Arar had no links to terrorism and awarded him compensation of 10 million dollars and an apology.  A federal appeals court panel dismissed Mr. Arar’s U.S. lawsuit in 2008 on the basis that it would interfere with national security and foreign policy, a decision that the dissenting judge found gives federal officials the license to “violate constitutional rights with virtual impunity.” The full appeals court later decided to rehear Mr. Arar’s appeal sua sponte.   Argument was heard on December 9, 2008, and Mr. Arar continues to await a decision.

In another case, in May 2006, the Justice Department moved to preempt the Center for Constitutional Rights’ (CCR) challenge to illegal warrantless domestic surveillance by invoking the state secrets privilege. Even though the government had already admitted all the main allegations in a case fundamentally about the privacy rights of Americans, the government attempted to assert its own privilege to secrecy in order to block any scrutiny of blatantly unlawful actions. The Bush Administration argued that CCR's case could reveal secrets regarding U.S. national security, and the presiding judge should dismiss it without reviewing the evidence.

The Obama Administration to Date

It remains for the Obama Administration to re-establish the standards that the Constitution demands. The Department of Justice under Attorney General Eric Holder should retract prior legal positions attempting to use the State Secrets privilege in outstanding cases, in order to block justice for torture survivors and other victims of government lawbreaking, or to shield military contractors, or officials or other government figures from accountability for their unlawful activities. The Department of Justice must reject the use of the state secrets privilege to block cases from the courtroom, disable judicial review, or provide a shield for official lawbreaking. Judges must always be able to see the evidence in order to assess whether the government is raising a legitimate objection – a process forestalled when the executive attempts to assert the state secrets privilege to block review.

However, despite campaign pledges to rein in the abuse of the state secrets privilege to dismiss cases in civil court, the new Justice Department under the Obama administration has yet to restrict the use of the state secrets privilege and has, in fact, continued and extended the Bush administration’s abuse of the privilege.

In the Jeppesen Dataplan case, the Department of Justice continued to assert a state secrets privilege to bar the lawsuit and prevent the claims of torture and abuse raised by the plaintiffs from being heard. In another warrantless wiretapping case, Al-Haramain Islamic Foundation v. Obama (formerly Al-Haramain v. Bush), in which an Islamic charity is challenging the warrantless wiretapping of its telephone calls, the Obama administration asserted that the Bush administration’s unlawful domestic warrantless wiretapping program is still a state secret that cannot be revealed without endangering national security, continuing the Bush administration’s legal assertions. In yet another wiretapping case, Jewel v. NSA, a lawsuit filed by the Electronic Freedom Foundation on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records, the Obama administration entered a new state secrets claim in defense of the NSA, rather than continuing a Bush claim, stating that the “state secrets privilege” should bar the case from ever being heard.

In these cases, President Bush himself acknowledged the existence of the CIA’s secret “black sites” and its rendition program, as well as unlawful warrantless surveillance. Both issues have been the subject of numerous lengthy exposes in the press. President Obama has said neither of these programs is currently operative. However, the dangerous and undemocratic state secrets assertions have continued.

It is critical that the new administration act now to reverse this course and end its use – and abuse – of legal arguments to provide a shield for torture and abuse.

Conclusion

The abuse of the state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, in which independent judges make independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.

Defenders of these uses of the state secrets privilege justify it with a “greater good” argument—injustice in the individual case is outweighed by the greater good of protecting national security. But this argument ignores another “greater good” argument: that the greater good is actually served by denying the executive a trump card that would allow it to cover up its incompetence or abuses of power.

The abuse of the privilege in order to keep claims out of the courtroom serves only to shroud abuses in secrecy and prevent accountability. Preventing judges from seeing the evidence in question is an end run around judicial review and unacceptable in a system based on checks and balances.

In order for torture and other government abuses to be ended, it is necessary that the survivors and victims of government practices must be heard, and that the torturers and those who ordered torture be held accountable to their victims for their activities. The state secrets privilege cannot, and should not be allowed to be used, as a shield to hide executive lawbreaking and prevent its confirmation through the judicial system.

In fact, it is incumbent upon the new administration to not only turn away from the abuse of the state secrets privilege to exclude cases from the courtroom, but, furthermore, to engage in a full and thorough investigation of precisely the abuses challenged in these cases – torture, secret and arbitrary detention and extraordinary rendition – including the appointment of a special prosecutor and prosecution for government officials who ordered torture and other illegal activities. The judicial system can, and must, serve as a check upon the power of the executive, and a mechanism for accountability for its abuses. It is imperative that the Obama administration act to end the abuse of the state secrets privilege to prevent such accountability. The state secrets privilege must be asserted by the executive, and the Obama administration must commit to not use the privilege to block review. Any legitimate issues can be handled through existing procedures that enable judges to assess and view classified material – the state secrets privilege, on the other hand, is an unacceptable shield for government lawbreaking, and its use should be ended by the Obama administration.

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