FOIA & Whistleblowers vs. Cover-Ups: Cover-Ups

Bush Wielding Secrecy Privilege To End Suits

National security cited against challenges to anti-terror tactics

By Andrew Zajac
Washington Bureau

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 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 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.

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.

"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 seriously."

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.

No court access

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.

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.

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 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 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.

"For the 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.

The 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.

But 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.

Arar's 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 to rule.

"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.

The 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

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