Bush Wielding Secrecy Privilege
To End Suits
security cited against challenges to anti-terror tactics
By Andrew Zajac
March 3, 2005
WASHINGTON -- 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
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 terror suspects to foreign countries where they might be tortured.
Use of the secrets privilege also could 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, 2001, 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 the 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 individuals 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 the 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's Reynolds decision, which enshrined the secrets
privilege more than 50 years ago, may have been based more on concealing negligence than preserving national security.
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.
"I don't think that's even a remotely plausible
claim," said Coffin, now in private practice. "It's an extremely important privilege and one the government takes extremely
The Justice Department does not tally the government's use of the privilege. But according to a recent
study, the U.S. has successfully asserted the secrets privilege at least 60 times since the early 1950s, and has been stymied
only five times.
Unlike 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.
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.
If the government succeeds "in invoking state secrets, they will
make renditions immune from legal challenge in court," Cole said.
Even attorneys fighting secrets claims acknowledge
that the government needs to keep some information under wraps. But they argue that the demands for secrecy have gotten out
"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 attorney who is handling two of the cases in which the government
is seeking dismissal of most or all of a lawsuit.
In one of those cases, Sibel Edmonds, a former FBI linguist, charged
that she was fired in retaliation for questioning security lapses at the bureau.
Last July, a Washington judge accepted
the government argument and dismissed her complaint.
Edmonds said she believes the Justice Department was concerned
about potential liability in other suits.
"If this stuff comes out, it will be used by 9/11 families and various defendants,
detainees," she said, referring to lawsuits by the families of Sept. 11 victims and by those held without charges in the subsequent
security sweeps. Edmonds testified Wednesday before Congress, telling a House subcommittee that the government seems "to be
far more concerned with avoiding accountability than protecting our national security."
In March 2004, another judge
cited state secrets grounds in throwing out a racial discrimination suit brought by Jeffrey Sterling, a black ex-CIA agent,
against his former employer.
Sterling , 37, who worked in the agency's Near East and South Asia Division from 1993
until 2001, said the CIA wants to head off potential liability in its treatment of other black employees.
U.S. government to say that they can't defend themselves against me is asinine," said Sterling, who works as an insurance
fraud investigator in St. Louis.
A CIA spokesman declined to comment.
Zaid said he has offered to allow the
government to keep certain information in both cases secret, but the government lawyers insist on killing the cases.
cases of Edmonds and Sterling--plus a third involving Drug Enforcement Administration agent Richard Horn, whose suit against
the CIA in 1994 for allegedly bugging his home also was quashed on state secrets grounds--are all before appeals courts.
the stakes are particularly high in the case of Arar. The computer engineer and father of two is one of an unknown number
of foreigners under U.S. control who were sent to other countries in what critics say is an outsourcing of torture.
Detention in Syria
According to his suit, filed in New York in January 2004, Arar was detained at New
York's Kennedy International Airport and interrogated about his links to terrorists, based apparently on his casual association
with a terrorist 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 over the next 10 months.
Although the U.S. 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.
suit in American courts charges the U.S. with violating his civil, constitutional and human rights.
In January the
government filed papers asserting that disclosure of information to defend itself "would pose an exceptionally grave or serious
risk to diplomatic relations and national security" and seeking dismissal of much of the suit. The district court has yet
"What's being done in the name of the American people is not acceptable," Arar said. "I want judges to re-evaluate
the post-9/11 strategy."
In a federal appeals court in Philadelphia, meanwhile, Patricia Reynolds Herring wants judges
to re-evaluate a suit she filed more than five decades ago that became the modern anchor for the state secrets privilege.
In that case, the Supreme Court ruled that national security trumped grievances of citizens. It declared that the
executive branch could assert a secrets privilege when "there is a reasonable danger that compulsion of the evidence will
expose military matters which ... should not be divulged."
The ruling meant that the Air Force did not have to produce
an accident report on a 1948 crash of a B-29 testing secret electronic equipment. Reynolds' first husband, Robert Reynolds,
was one of three civilian engineers killed.
The current challenge began in 2003, after Herring and other plaintiffs'
relatives obtained a copy of the accident report from a Web site selling declassified documents. They discovered that the
engine fire that caused the plane to go down was linked to shoddy maintenance.
The new suit alleges the government
committed fraud by citing national security in refusing to release the report. The government counters that decisions made
50 years ago shouldn't be second-guessed because it's impossible "to understand how seemingly trivial information contained
in these documents may have provided valuable intelligence to the nation's enemies."
The new suit seeks a financial
settlement and does not contest the government's right to a secrets privilege. But Herring said she hopes it will lead to
a healthy skepticism.
"I feel very strongly [the Reynolds] ruling was tainted," said Herring, 77, of Carmel, Ind.
"My hope would be that people would be more wary and less trusting of anything that's told to them by the government. Everything
is not a matter of protecting the national security."
SECRETS POWER DATES TO 1800S
The state secrets
privilege is not explicitly authorized by the Constitution or Congress, but has been recognized by federal courts as an extension
of the president's power since the early 19th Century.
Used in civil litigation, it allows the government to ask a
court to keep certain information secret, on grounds of national security, even if that means dismissing the case.
modern foundation for the privilege is the Supreme Court's 1953 Reynolds decision, which tries to strike a balance between
the rights of judges to review evidence and need of the executive branch to keep secrets.
"It's a balancing test where
the court doesn't want to reveal national secrets; at the same time, it doesn't want the executive to use the privilege as
a case killer," said Jill Hasday, who teaches national security law at Vanderbilt University.
In general, Hasday said,
"the court is very deferential. If the executive says it's a secret, the court basically buys it."
-- Andrew Zajac
Copyright © 2005, Chicago Tribune
The penchant for secreting exculpatory information and
evidence has been part and parcel of the DOJ and FBI's modus operandi for many years. As evidenced by the material in
this site, it continues unabated. The CIA has adopted the same tactic to cover crimes of the past and used the oft abused
"national securty" blanket to soothe its soul.