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Washington Report on Middle East Affairs, July 2008, pages 56-57 Human Rights Has Protecting U.S. State Secrets Gone Too Far?
THE AMERICAN Constitution Society for Law and Policy (ACS) organized an April 4 panel discussion entitled: “The State Secrets Privilege: Time for Reform?” ACS is a national network of lawyers, students and policymakers whose mission is to ensure equality in access to justice and liberty. The panel’s focus was on the U.S. government’s ability to invoke the Military and State Secrets Privilege, a common law privilege dating back to the 1950s that allows the government to refuse to disclose information in legal proceedings that might pose national security risks. Jonathan Turley, professor of law at George Washington University, moderated the event, held at the Rayburn House Office Building in Washington, DC. He labeled the privilege as highly important and controversial. According to panelist Aziz Huq, director of the Liberty and National Security Project at NYU’s Brennan Center for Justice, the root cause for misuse is “enormous over-classification [of what constitutes a state secret] in the government” due to U.S. national security concerns. Michael Vatis, former director of the FBI’s National Infrastructure Protection Center, former counsel at the Department of Defense, and current partner with Steptoe & Johnson LLP, charged that the failure of congressional oversight has allowed “the executive branch to try to use its power to the fullest extent and, ultimately, go across the legal line and the line of propriety.” The administration’s use of the privilege requires oversight, Vatis said, to ensure the “protect[ion of] litigants’ interests and justice and the public’s interest in knowing what the government is up to.” Panelist Ben Wizner, staff attorney for the American Civil Liberties Union, specializes in national security and human rights cases, and is involved in the case of Khaled Al-Masri, a Lebanese-born German citizen who was abducted, interrogated and tortured by the CIA, as well as the CIA rendition case of Mohamed v. Jeppesen (see April 2008 Washington Report, p. 50). Elaborating on Huq’s statement, Wizner emphasized that, like the two he is working on, each post-9/11 case “that has tried to hold U.S. officials accountable for torture has been dismissed at the very outset…not because the court said that the factual allegations were not proven, not because the court said that these facts don’t constitute torture.” It is the state secrets legislation that stops each case from proceeding beyond an initial complaint stage, Wizner said, with the assumption that “there are times when the interest of individual litigants must be subordinated to the interest of the public and to the greater good.” However, he argued, torture and surveillance cases are very much in the interest of the public and greater good—and legal proceedings are being denied. “As the law stands,” Wizner concluded, “the government can engage in torture, can declare it a state secret, and by virtue of that designation alone, avoid any judicial accountability.” Justin Florence, fellow at the Georgetown Center for National Security and Law, discussed two state secrets reform bills pending in Congress, one in the Senate and one before the House. According to Florence, both define the state secrets privilege as safeguarding“evidence that, if publicly disclosed, would be reasonably likely to cause significant harm to the national security or diplomatic or foreign relations of the United States.” Both bills also contain protection against use of the privilege “where the administration or the government is not fully accurate in representing what’s in the evidence that it seeks the privilege for,” he explained. A federal judge would first review the undisclosed evidence and decide if it meets the requirements for state secrets privilege. If she decides it does not, the court would be required to move beyond the initial complaint stage. Furthermore, the bills strengthen congressional oversight by requiring the administration to report its reasons for invoking the privilege, and to provide some supporting evidence. The major difference between the two bills, Florence noted, is that the House bill contains a “retroactivity principle” that would allow a look at past privilege usage. Richard Samp, Washington Legal Foundation’s chief counsel, acknowledged that the executive branch needs more supervision, but believes that many of the reforms presented by the congressional bills would lead to a “logistical nightmare” of judges and lawyers trying to obtain security clearances in order to examine the secret evidence. “We do have to recognize we are talking about civil litigation,” Samp went on to say. “At the end of the day, where the lesser of two evils is dismissal of a civil case, rather than the disclosure of national security secrets…what has to give is the civil litigation.” —Nina Hamedani |
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