Obama's Record: Abuse of the State Secrets Privilege

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 Abuse of the State Secrets Privilege

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 government spied on American citizens; tortured and abused detainees in Iraq, Afghanistan, Guantánamo and CIA “black sites”; overrode Congressional authority to regulate war; and carried out human rights abuses around the globe in defiance of U.S. and international law.

When these unconstitutional actions were challenged in court, the administration resorted more aggressively than any previous administration to invoking the “state secrets privilege,” attempting to prevent these challenges from ever being heard by a court of law. The government claims that this privilege allows the head of an executive branch department to preclude evidence from being produced on the grounds that it is secret information that would harm national security or foreign relations interests if disclosed.

Instead of employing the privilege solely to limit access to classified evidence (as it was used in the past), the Bush administration used the state secrets privilege far more than any administration in history to ask courts to dismiss cases outright, turning the privilege into a tool for covering up government abuses and criminal activities and for blocking embarrassing disclosures. This 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 evaluations based on the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.

Despite President Obama’s campaign pledges to halt abuse of the state secrets privilege, in its first real test case the Obama administration chose to continue the Bush administration's practice of secrecy before justice. In the case, Mohamed v. Jeppesen Dataplan, Inc., five victims of extraordinary rendition, including former Guantánamo detainee Binyam Mohamed, filed suit against a flight-planning company and subsidiary of Boeing that is alleged to have served as the CIA's contractor for its program of extraordinary rendition, assisting with flying the plaintiffs to secret sites in various countries where they were tortured. The Justice Department lawyer who appeared on behalf of the government in the case stated that the change of administrations had not changed the government's position, continuing to argue for the case to be thrown out because the entire subject of the lawsuit is a “state secret.”

In September, the Attorney General issued new policies governing the invocation of the state secrets privilege that purport to raise the standard governing what information can be protected under the privilege. However, this new policy does not provide for judicial review of the evidence in question, thereby providing no meaningful check on the executive branch.
Under the new policy, the privilege could apparently be invoked to protect information that is not even classified, or is merely classified as confidential. It does not require the Attorney General or his assistant to evaluate the actual evidence to be privileged, but only to review a declaration submitted by the responsible department.

Regardless of who in the executive branch approves an assertion of state secrets, it is no substitute for the ability of a judge to review the underlying evidence itself. Judicial review is absolutely essential to ensure that the privilege is not abused. Without judicial review, a Department of Justice promise not to use the privilege to cover up lawbreaking or incompetence is simply a promise that the executive will police itself. Ironically, it was precisely that type of meaningless promise that enabled the myriad abuses that are currently the subject of the lawsuits that the Obama administration inherited and is now defending. The conspicuous absence of judicial review was a hallmark of the Bush administration, but it should not be a hallmark of this one.

President Obama must reverse dangerous legal positions taken by the Bush administration in cases brought by victims and survivors of government abuses, and he must end the practice of invoking the state secrets privilege to prevent judicial checks on executive power and accountability for executive branch abuses. Our system of checks and balances can only be effective if judges, and not only executive officials, can review evidence to evaluate whether it truly merits being shielded from disclosure.

CCR’s work in this area:

CCR’s case, CCR v Bush, challenging the NSA’s warrantless wiretapping program, also challenges the abuse of the state secrets privilege by the Justice Department. In this case, which is fundamentally about Americans’ right to be free of unchecked government surveillance, the government professed a need for secrecy in order to block any scrutiny of its own blatantly unlawful actions and asked the judge to dismiss the suit without reviewing the evidence. Another important case that has met with “state secrets” claims is CCR's extraordinary rendition case, Arar v. Ashcroft.

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This page last updated: April 1, 2010

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