Much-Abused ‘State Secrets Privilege’ Under Fire in Congress

Rep. Jerrold Nadler (D-New York)

Obama and his successors in the White House would be banned from using false claims of national security to conceal “embarrassing or unlawful conduct” by the government, under new legislation proposed by lawmakers on both sides of the House.

The proposed State Secrets Protection Act, H.R. 5956, introduced by Rep. Jerrold Nadler (D-New York), would be the first law to rein in the president’s “state secrets privilege,” a nearly limitless power to kill litigation by claiming a lawsuit would expose national security information to the benefit of America’s enemies. First recognized by the US Supreme Court in a McCarthy-era lawsuit in 1953, the privilege (.pdf) has been increasingly and successfully invoked in the post-9/11 era to shield the government and its agents from court scrutiny in cases involving rendition, torture, warrantless wiretapping, and the lethal targeting of U.S. citizens.

“The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation,” Nadler said of the bill, unveiled last week. ”This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases.”

Also signing on to the legislation is Tom Petri (R-Wisconsin), John Conyers Jr. (D-Michigan), and Zoe Lofgren (D-California).

The bill, which has not been placed for a committee hearing, would require judges to find alternatives to dismissing lawsuits when the privilege is invoked. Nearly every time the privilege is asserted, judges toss lawsuits.

There have been a few exceptions, however. A federal judge declined to stop a lawsuit brought by the Electronic Frontier Foundation targeting the nation’s telecommunications companies for being complicit in the Bush administration’s secret electronic wiretapping program adopted in the wake of the September 11, 2001 terror attacks.

US District Judge Vaughn Walker allowed the case to proceed, despite the government’s assertion of the privilege. Congress, however, with the vote of then Sen. Barack Obama, adopted legislation in 2008 immunizing the telcos from the lawsuits — legislation upheld on appeal.

Walker, now a retired San Francisco federal judge, also allowed a wiretapping case by two lawyers to go forward despite key evidence in the case being declared a state secret.

The legislation would require judges to do what Walker did, and examine whether cases can proceed despite top-secret evidence having to be removed.

Walker found in 2010 that two American lawyers’ telephone conversations with their clients in Saudi Arabia in 2004 were siphoned to the National Security Agency without warrants. The allegations were initially based on a classified document the government accidentally mailed to the former al-Haramain Islamic Foundation lawyers.

The document was later declared a state secret, removed from the long-running lawsuit, and has never been made public. With that document ruled out as evidence, the lawyers instead cited a bevy of circumstantial evidence that Walker found showed the government illegally wiretapped the lawyers as they spoke on US soil to Saudi Arabia.

The Obama administration maintained on appeal last month that the lawsuit should have been killed because the privilege was sited.

In September 2009, meanwhile, Attorney General Eric Holder announced the administration would only invoke the privilege when there’s a possibility of “significant harm” to the country, and won’t use it to hide embarrassing or illegal government programs. It is unknown whether the administration is practicing what it preaches, as evidence it sites to support the privilege is a secret.

Two days after Holder’s announcement, Nadler, Petri, and Conyers introduced legislation that was similar to the bill floated last week. That 2009 bill never made it out of committee.

The latest legislation is to counter federal judges who routinely accept the government’s privilege assertion on face value without any inquiry, sometimes without viewing any classified material to support the government’s position.

That happened in the original case in which the Supreme Court first acknowledged the privilege in 1953.

At the time, the government declined to divulge a military airplane accident report in a lawsuit brought by the spouses of three civilian engineers killed in a crash. The government said the report, if made public, threatened to divulge national security secrets.

Five decades later, researchers uncovered the report, and discovered the claim was a lie. The report had no military secrets and instead showed that government negligence caused the crash.

Photo: roberthuffstutter/Flickr