The Clipboard: White House use of privilege draws criticism

From an article¹:

The Bush administration is aggressively wielding a rarely used executive power known as the state-secrets privilege in an attempt to squash hard-hitting court challenges to its anti-terrorism campaign.

How the White House is using this privilege, not a law but a series of legal precedents built on national security, disturbs some civil libertarians and open-government advocates because of its sweeping power. Judges almost never challenge the government's assertion of the privilege, and it can be fatal to a plaintiff's case.

The government is invoking the privilege in an attempt to wipe out the heart of a lawsuit that seeks to examine rendition, the secretive and controversial practice of sending terrorism suspects to foreign countries where they might be tortured.

Use of the secrets privilege could also eliminate a suit by a former FBI contract linguist who charges that the bureau bungled translations of terrorism intelligence before and after the Sept. 11 attacks.

The Bush administration is also using the secrets privilege to seek dismissal of a third case not related directly to terrorism. And the administration has invoked the privilege in less sweeping ways on several other occasions.

The use of state-secrets privilege, critics say, is part of President Bush's forceful expansion of presidential secrecy, including a more restrictive approach to releasing documents under the Freedom of Information Act; limitations on the dissemination of presidential papers; and curtailment of information on people rounded up in the war on terrorism. (link)

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Complete text of the article, White House use of privilege draws criticism, by Andrew Zajac

The Bush administration is aggressively wielding a rarely used executive power known as the state-secrets privilege in an attempt to squash hard-hitting court challenges to its anti-terrorism campaign.

How the White House is using this privilege, not a law but a series of legal precedents built on national security, disturbs some civil libertarians and open-government advocates because of its sweeping power. Judges almost never challenge the government's assertion of the privilege, and it can be fatal to a plaintiff's case.

The government is invoking the privilege in an attempt to wipe out the heart of a lawsuit that seeks to examine rendition, the secretive and controversial practice of sending terrorism suspects to foreign countries where they might be tortured.

Use of the secrets privilege could also eliminate a suit by a former FBI contract linguist who charges that the bureau bungled translations of terrorism intelligence before and after the Sept. 11 attacks.

The Bush administration is also using the secrets privilege to seek dismissal of a third case not related directly to terrorism. And the administration has invoked the privilege in less sweeping ways on several other occasions.

The use of state-secrets privilege, critics say, is part of President Bush's forceful expansion of presidential secrecy, including a more restrictive approach to releasing documents under the Freedom of Information Act; limitations on the dissemination of presidential papers; and curtailment of information on people rounded up in the war on terrorism.

Justice Department spokesman Kevin Madden declined to discuss any active cases. But he said, "The state-secrets privilege is [asserted] only after a careful determination that, were a secret disclosed, it would adversely affect national security."

The secrets privilege is an especially powerful weapon because federal judges, reluctant to challenge the executive branch on national security, almost never refuse the government's claim to confidentiality.

That is true even though a growing body of declassified documents suggests that in the past, at least, the privilege has been used to protect presidential power, not national secrets, according to Thomas Blanton, director of the National Security Archive at George Washington University, which works to expand public access to government documents.

There's even fresh evidence that the case leading to the Supreme Court decision that enshrined the secrets privilege more than 50 years ago, may have been based more on concealing negligence than preserving national security.

In claiming the state-secrets privilege, "the government always overreaches," Blanton said. "It always misleads, and in some cases it lies, because it believes its authority is at stake."

That's not so, said Shannen Coffin, who oversaw state-secrets litigation at the Justice Department from January 2002 until mid-2004.

"It's an extremely important privilege and one the government takes extremely seriously," said Coffin, now in private practice.

The Justice Department does not tally the government's use of the privilege. But according to a recent study, the United States has successfully asserted the secrets privilege at least 60 times since the early 1950s and has been stymied five times.

Unlike in criminal prosecutions, where the law allows the disclosure of at least some secret information - for example, by allowing lawyers to view it in a restricted setting such as a judge's chambers - the secrets privilege keeps information completely out of court in civil cases.

More striking than the number of cases is the breadth of some recent demands for secrecy, say lawyers familiar with government secrets litigation.

For example, it would erase most of Maher Arar's suit over his seizure by U.S. officials in New York in 2002.

Arar, a Canadian citizen who was born in Syria, said he was shackled and flown to Jordan and then Syria, where he was abused and imprisoned for 10 months.

His case is aimed at laying bare the arrangements between governments that underpin renditions, said David Cole, a professor at Georgetown University and one of Arar's lawyers.

Even attorneys fighting secrets claims acknowledge that the government has to keep some information under wraps. But they argue that the demands for secrecy have gotten out of hand.

"It's not that the privilege shouldn't exist. It's become too broad and abused with very little accountability imposed by the judiciary," said Mark Zaid, a Washington lawyer who is handling two of the cases in which the government is seeking dismissal of most or all of a lawsuit.

According to his suit, filed in New York in January 2004, Arar was detained at New York's John F. Kennedy International Airport and interrogated about links to terrorists, based apparently on his casual association with a terrorism suspect.

Arar said he pleaded with his captors to send him back to Canada. Instead he was flown to Jordan and then to Syria, where, he said, he was beaten with an electric cable and otherwise brutalized.

Although the United States lists Syria as one of six state sponsors of terrorism, the two countries have cooperated from time to time in the war on terrorism.

In October 2003, Arar was released and sent back to Canada. No country has charged him with a crime. "The only conclusion is they sent me there to be tortured and to extract information," he said.

reference=http://www.baltimoresun.com/news/nationworld/bal-te.bang06mar06,1,5225849.story?coll=bal-nationworld-headlines&ctrack=2&cset=true