The Abuse of the State Secrets Privilege

Yesterday the Senate Judiciary Committee followed last month's House Judiciary Committee hearing into the Bush Administration's abuse of the "state secrets" privilege. The administration has used the privilege to thwart examination in the clear light of day of its activities, from its illegal wiretapping (domestic surveillance) program, the so-called rendition of suspected terrorists such as Khaled el-Masri, the torture/interrogation of prisoners, or the secret gathering of banking records.
Just yesterday, a federal judge dismissed a lawsuit on the grounds of the state secrets privilege. The suit was brought against a Boeing subsidiary accused of flying alleged terrorists, on behalf of the CIA, to foreign countries to undergo torture.
In his ruling, the US District Court judge, James Ware, wrote "the court's review of Gen. Hayden's public and classified declarations confirm that continuing the case would jeopardize national security and foreign relations and that no protective procedure can salvage this case." (emphasis added) The State Secrets Protection Act seeks to remedy this since it will require a court to actually examine the evidence.
Senate Judiciary Committee Chairman Patrick Leahy (D-VT) noted, because of the administration's repeated invocation of the privilege, "it is through the press that we first learned about secret surveillance of Americans by their own government in the years after 9/11, secret renditions abroad in violation of U.S. laws, secret prisons abroad, secret decisions to fire some of the nation’s top prosecutors, and the secret destruction of interrogation tapes that may have contained evidence of torture. Having relied on an overly expansive, self-justifying view of executive power, the Bush administration now seeks secrecy for its actions. It has taken a legal doctrine that was intended to protect sensitive, national security information and seems to be using it to evade accountability for its own misdeeds."
Louis Fisher, a specialist in Constitutional law at the Law Library of the Library of Congress, testified on the need to reform the state secrets privilege as "necessary to protect constitutional principles, particularly the system of checks and balances. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. A sense of fairness in the courtroom is essential in protecting the integrity and credibility of the judiciary."

This sounds stunningly reasonable. So how does the Bush Administration respond? Naturally, it cites the threat from al-Qaeda specifically and terrorists generally.
Carl Nichols, Assistant Deputy Attorney General: "litigation may risk disclosing to al Qaeda or other adversaries details regarding our intelligence capabilities and operations, our sources and methods of foreign intelligence gathering, and other important and sensitive activities that we are presently undertaking in our conflict."
But former federal Appeals Court Judge Patricia Wald noted that judges frequently deal with classified information without revealing anything to the nation's enemies:
"To my knowledge there have been no court 'leaks' of any such information."

Of course, the administration casts aside the privilege when politically convenient. Despite its past assertions that even revealing the existence of any program would damage national security, it then selectively dribbles out information to the public or to Congress. One recent example was cited by Kevin Bankston, an attorney for the Electronic Freedom Foundation, in his testimony to the House: "The timing of the Administration’s belated disclosure to House members of materials related to the NSA program, after over a year of Congressional demands and at the height of the debate over whether to give AT&T and the other carriers immunity, was clearly dictated not by a need to protect state secrets but by political considerations."
And on Monday, White House Press Secretary Dana Perino, knowing telecom immunity would be granted by the Senate, said this about FISA violations, illegal wiretapping and the telecommunications companies who participated: "The telephone companies that were alleged to have helped their country after 9/11 did so because they are patriotic and they certainly helped us and they helped us save lives." (emphasis added). Note that "alleged," apparently a reflexive use of the word on Perino's part, becomes "did so."

The Senate's State Secrets Protection Act is intended to remedy these several abuses. Caroline Frederickson of the ACLU said "the state secrets privilege has been used in recent years as a legal ‘A’ bomb, annihilating cases that may expose the government," and that the time had come "for Congress to intervene and to reinforce the system of checks and balances."

Whether that will be the case remains to be seen.