State Secrets Privilege
Encyclopedia
The state secrets privilege is an evidentiary rule
created by United States
legal precedent
. Application of the privilege results in exclusion of evidence from a legal case
based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security. United States v. Reynolds
, which involved military secrets, was the first case that saw formal recognition of the privilege.
Following a claim of "state secrets privilege", the court rarely conducts an in camera
examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion. The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.
serves the same purpose). The government may intervene in any civil suit, including when it is not a party to the litigation, to ask the court to exclude state secrets evidence. While the courts may examine such evidence closely, in practice they generally defer to the Executive Branch
. Once the court has agreed that evidence is subject to the state secrets privilege, it is excluded from the litigation. Often, as a practical matter, the plaintiff cannot continue the suit without the privileged information, and drops the case. Recently, courts have been more inclined to dismiss cases outright, if the subject matter of the case is a state secret.
"); certain prohibitions on the publication of classified information (as in New York Times Co. v. United States
, the Pentagon Papers
case); and the use of classified information in criminal cases (governed by the Classified Information Procedures Act).
and leader of foreign affairs
(as suggested in United States v. Nixon
) or derived from the idea of separation of powers (as suggested in United States v. Reynolds
) It seems that the US privilege "has its initial roots in Aaron Burr's
trial for treason
." In this case, it was alleged that a letter from General James Wilkinson
to President Thomas Jefferson
might contain state secrets and could therefore not be divulged without risk to national security.
in the 1953 decision United States v. Reynolds
(345 U.S. 1). A military airplane, a B-29 Superfortress
bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The court held that only the government can claim or waive the privilege, and it “is not to be lightly invoked”, and last there “must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by that officer.” The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive.
In 2000, the accident reports were declassified and released, and it was found that the assertion that they contained secret information was fraudulent. The reports did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in this landmark case.
Despite this ruling, a case might still be subject to judicial review since the privilege was intended to prevent certain, but not all, information to be precluded.
, John Dean
:
While Henry Lanman reports in Slate
:
However, at least one article has retracted these figures, finding they were based on erroneous information:
Lanman continues to cite two political science professors at the University of Texas-El Paso who concluded that
Following the September 11, 2001 attacks
, the privilege is increasingly used to dismiss entire court cases, instead of only withholding the sensitive information from a case. Also in 2001, George W. Bush
issued Executive Order 13233
extending the accessibility of the state secrets privilege to also allow former presidents, their designated representatives, or representatives designated by their families, to invoke it to bar records from their tenure.
An article in the NYT, in August 2007, on a lawsuit involving Society for Worldwide Interbank Financial Telecommunication
concludes that it would seem that the unprecedented frequency with which the Bush administration invoked and invokes this principle has made judges more skeptical and willing to ask the government to validate its claims. In the words of Tom Blanton, director of the National Security Archive
at George Washington University
:
In several prominent cases, the evidence that the government successfully excluded was later revealed to contain no state secrets. i.e. United States v. Reynolds, Sterling v. Tenet, Edmonds v. Department of Justice and the Pentagon Papers
.
alleges that the Bush administration attempted to expand executive power
, as evidenced by the unitary executive theory
propagated by John Yoo
. The theory suggests that the President, as Commander-in-Chief
, cannot be bound by Congress or any law, national or international. By invoking the state secrets privilege in cases involving actions taken in the war on terror
(i.e. extraordinary rendition
, allegations of torture
, allegedly violating the Foreign Intelligence Surveillance Act
) Greenwald opines the administration tried to evade judicial review
of these claims of exceptional war powers. In effect, this is preventing a judicial ruling determining whether there is a legal basis for such expansive executive power. With that in mind, applying this privilege makes impeachment
the only possible means left for Congress to exercise their duty to uphold the checks and balances constitutionally intended to prevent abuse of power.
On January 22, 2008, Senators Edward Kennedy
and Arlen Specter
introduced , the State Secrets Protection Act
.
bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission. The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have alleged government abuse of secrecy in this landmark case.
Richard Horn's case was reinstated on July 20, 2009 by USDC Judge Royce C. Lambreth on the basis that the CIA had engaged in fraud on the court.
On 30 March 2010, as a result of a multi-million dollar settlement agreement between Horn and the government, Lamberth dismissed the underlying case with prejudice. Subsequently, later that same year, in a 22 September order, Lamberth issued a final order vacating his earlier opinions and orders finding that CIA lawyers, Tenet, and Brown had committed fraud on the court. Lamberth also specifically ordered that a sentence be removed from his 30 March 2010 Memorandum. The removed sentence had stated that "allegations of wrongdoing by the government attorneys in this case are not only credible, they are admitted."
scientist Wen Ho Lee
, charged with stealing nuclear secrets; President Bush
stated that national security would be compromised if Trulock were allowed to seek damages from Lee; though it resulted in the case being dismissed, another suit was launched directly attacking then-FBI Director Louis Freeh
for interfering and falsely invoking the state secrets privilege.
; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi
government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower
.
case of Crater Corporation vs. Lucent Technologies
Inc. and AT&T Company, (Crater Corp. v. Lucent Technologies, September 7, 2005). Crater was prevented from proceeding with discovery in its patent infringement
case (U.S. Patent No. 5,286,129) by the United States' assertion that discovery could cause "extremely grave damage to national security". The infringement case centered on WetMate underwater fiber optic coupling devices beneath the sea.
filed a motion to dismiss ACLU v. NSA
, the ACLU's lawsuit against the NSA by invoking the state secrets privilege.
On July 26, 2006, the case was dismissed. In a different case in Michigan, brought by the ACLU against the NSA on behalf of various scholars, journalists, attorneys, and national non-profit organizations, Judge Anna Diggs Taylor ruled on August 17, 2006, that the program was unconstitutional and should be halted. She upheld the doctrine, but ruled that the government's public statements concerning the operation were admissible and constituted sufficient proof for the case to continue without any privileged evidence or discovery. On July 6, 2007, the Sixth Circuit Court of Appeals threw out Taylor's decision, ruling 2-1 that the ACLU could not produce evidence to prove that the ACLU had been wrongfully wiretapped by the NSA, and therefore did not have the standing to bring such a case to court, regardless of the legality question. On February 19, 2008, the Supreme Court declined to hear the ACLU's appeal. See ACLU v. NSA
.
(CCR) challenge to warrantless domestic surveillance by invoking the state secrets privilege. The Bush Administration is arguing that CCR's case could reveal secrets regarding U.S. national security, and thus the presiding judge must dismiss it without reviewing the evidence.
and the National Security Agency
brought by the Electronic Frontier Foundation
. The EFF alleged that the government has secret computer rooms conducting broad, illegal surveillance of U.S. citizens. Testifying at a January 29, 2008 House Judiciary Committee hearing on reform of the state secrets privilege, EFF attorney Kevin Bankston contended that the administration's interpretation of the privilege was overly broad, and failed to properly consider the evidentiary procedures provided for by Section 1806(f) of the Foreign Intelligence Surveillance Act. However, the case was dismissed on June 3, 2009, citing retroactive legislation (section 802 of the Foreign Intelligence Surveillance Act) stating that
was dismissed based on the privilege, which was invoked by the Central Intelligence Agency
(CIA). Khalid El-Masri
alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. Judge T.S. Ellis, III of the U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. http://www.aclu.org/safefree/torture/25606prs20060519.html. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. http://www.nytimes.com/packages/pdf/world/20070303_MASRI.pdf On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.
, a wrongfully-accused and tortured victim, sought to sue Attorney General
John Ashcroft
for his role in deporting Arar to Syria
to face torture and extract false confessions. It was formally invoked by Deputy Attorney General
James B. Comey
in legal papers filed in the United States District Court for the Eastern District of New York
. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
created by United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
. Application of the privilege results in exclusion of evidence from a legal case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security. United States v. Reynolds
United States v. Reynolds
United States v. Reynolds, , is a landmark legal case in 1953 that saw the formal recognition of State Secrets Privilege, a judicially recognized extension of presidential power.- Overview :...
, which involved military secrets, was the first case that saw formal recognition of the privilege.
Following a claim of "state secrets privilege", the court rarely conducts an in camera
In camera
In camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion. The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.
Function
The purpose of the state secrets privilege is to prevent courts from revealing state secrets in the course of civil litigation (in criminal cases, the Classified Information Procedures ActClassified Information Procedures Act
The Classified Information Procedures Act or , is codified as the third appendix to Title18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is .-Legislative Revision History:...
serves the same purpose). The government may intervene in any civil suit, including when it is not a party to the litigation, to ask the court to exclude state secrets evidence. While the courts may examine such evidence closely, in practice they generally defer to the Executive Branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
. Once the court has agreed that evidence is subject to the state secrets privilege, it is excluded from the litigation. Often, as a practical matter, the plaintiff cannot continue the suit without the privileged information, and drops the case. Recently, courts have been more inclined to dismiss cases outright, if the subject matter of the case is a state secret.
Distinguished from other legal doctrines
The state secrets privilege is related to, but distinct from, several other legal doctrines: the principle of non-justiciability in certain cases involving state secrets (the so-called "Totten RuleTotten v. United States
Totten v. United States, 92 U.S. 105 , was a United States Supreme Court case in which the court ruled on judicial jurisdiction in espionage cases...
"); certain prohibitions on the publication of classified information (as in New York Times Co. v. United States
New York Times Co. v. United States
New York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.President Richard Nixon had...
, the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
case); and the use of classified information in criminal cases (governed by the Classified Information Procedures Act).
Origins
The doctrine was effectively imported from British law which has a similar privilege. It is debatable whether the state secrets privilege is based upon the President's powers as commander-in-chiefCommander-in-Chief
A commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...
and leader of foreign affairs
Foreign Affairs
Foreign Affairs is an American magazine and website on international relations and U.S. foreign policy published since 1922 by the Council on Foreign Relations six times annually...
(as suggested in United States v. Nixon
United States v. Nixon
United States v. Nixon, , was a landmark United States Supreme Court decision. It was a unanimous 8-0 ruling involving President Richard Nixon and was important to the late stages of the Watergate scandal. It is considered a crucial precedent limiting the power of any U.S. president.Chief Justice...
) or derived from the idea of separation of powers (as suggested in United States v. Reynolds
United States v. Reynolds
United States v. Reynolds, , is a landmark legal case in 1953 that saw the formal recognition of State Secrets Privilege, a judicially recognized extension of presidential power.- Overview :...
) It seems that the US privilege "has its initial roots in Aaron Burr's
Aaron Burr
Aaron Burr, Jr. was an important political figure in the early history of the United States of America. After serving as a Continental Army officer in the Revolutionary War, Burr became a successful lawyer and politician...
trial for treason
Burr conspiracy
The Burr conspiracy in the beginning of the 19th century was a suspected treasonous cabal of planters, politicians, and army officers led by former U.S. Vice President Aaron Burr. According to the accusations against him, Burr’s goal was to create an independent nation in the center of North...
." In this case, it was alleged that a letter from General James Wilkinson
James Wilkinson
James Wilkinson was an American soldier and statesman, who was associated with several scandals and controversies. He served in the Continental Army during the American Revolutionary War, but was twice compelled to resign...
to President Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
might contain state secrets and could therefore not be divulged without risk to national security.
Supreme Court recognition in United States v. Reynolds
The privilege was first officially recognized by the Supreme Court of the United StatesSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in the 1953 decision United States v. Reynolds
United States v. Reynolds
United States v. Reynolds, , is a landmark legal case in 1953 that saw the formal recognition of State Secrets Privilege, a judicially recognized extension of presidential power.- Overview :...
(345 U.S. 1). A military airplane, a B-29 Superfortress
B-29 Superfortress
The B-29 Superfortress is a four-engine propeller-driven heavy bomber designed by Boeing that was flown primarily by the United States Air Forces in late-World War II and through the Korean War. The B-29 was one of the largest aircraft to see service during World War II...
bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The court held that only the government can claim or waive the privilege, and it “is not to be lightly invoked”, and last there “must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by that officer.” The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive.
In 2000, the accident reports were declassified and released, and it was found that the assertion that they contained secret information was fraudulent. The reports did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in this landmark case.
Despite this ruling, a case might still be subject to judicial review since the privilege was intended to prevent certain, but not all, information to be precluded.
Recent use
According to former White House CounselWhite House Counsel
The White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...
, John Dean
John Dean
John Wesley Dean III is an American lawyer who served as White House Counsel to United States President Richard Nixon from July 1970 until April 1973. In this position, he became deeply involved in events leading up to the Watergate burglaries and the subsequent Watergate scandal cover-up...
:
While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases."
While Henry Lanman reports in Slate
Slate (magazine)
Slate is a US-based English language online current affairs and culture magazine created in 1996 by former New Republic editor Michael Kinsley, initially under the ownership of Microsoft as part of MSN. On 21 December 2004 it was purchased by the Washington Post Company...
:
"... the Reporters Committee for Freedom of the PressReporters Committee for Freedom of the PressThe Reporters Committee for Freedom of the Press is an American nonprofit organization, founded in 1970, that provides free legal assistance to and on behalf of journalists. A number of prominent journalists presently sit on the organization's steering committee, including Dan Rather, and Judy...
reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11."
However, at least one article has retracted these figures, finding they were based on erroneous information:
"Correction: In this article, we incorrectly reported that the government invoked the state secrets privilege in 23 cases since 2001. The figure came from the 2005 Secrecy Report Card published by OpenTheGovernment.org. The privilege was actually invoked seven times from 2001 to 2005, according to the corrected 2005 report card, which is not an increase from previous decades"
Lanman continues to cite two political science professors at the University of Texas-El Paso who concluded that
"courts have examined the documents' underlying claims of state secrecy fewer than one-third of the times it has been invoked. And, ..., courts have only actually rejected the assertion of the privilege four times since 1953."
Following the September 11, 2001 attacks
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
, the privilege is increasingly used to dismiss entire court cases, instead of only withholding the sensitive information from a case. Also in 2001, George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
issued Executive Order 13233
Executive Order 13233
Executive Order 13233 limited access to the records of former United States Presidents. It was drafted by then White House Counsel Alberto Gonzales and issued by George W. Bush on November 1, 2001...
extending the accessibility of the state secrets privilege to also allow former presidents, their designated representatives, or representatives designated by their families, to invoke it to bar records from their tenure.
An article in the NYT, in August 2007, on a lawsuit involving Society for Worldwide Interbank Financial Telecommunication
Society for Worldwide Interbank Financial Telecommunication
The Society for Worldwide Interbank Financial Telecommunication operates a worldwide financial messaging network which exchanges messages between banks and other financial institutions...
concludes that it would seem that the unprecedented frequency with which the Bush administration invoked and invokes this principle has made judges more skeptical and willing to ask the government to validate its claims. In the words of Tom Blanton, director of the National Security Archive
National Security Archive
The National Security Archive is a 501 non-governmental, non-profit research and archival institution located in the George Washington University in Washington, D.C.. Founded in 1985 by Scott Armstrong, it archives and publishes declassified U.S. government files concerning selected topics of US...
at George Washington University
George Washington University
The George Washington University is a private, coeducational comprehensive university located in Washington, D.C. in the United States...
"What seems clear is that until a year or two ago, the judges rarely even questioned it when the government raised the 'state secrets' claim. It was a neutron bomb – no plaintiffs left standing. But we're now seeing that judges are starting to actually look behind the government's secrecy claims and see what's really there."
Criticism
Since 2001, there has been mounting criticism of the state secrets privilege. Such criticism generally falls into four categories:Weak external validation of executive assertion of privilege
Many commentators have expressed concern that the courts never effectively scrutinize executive claims of privilege. Lacking independent national security expertise, judges frequently defer to the judgment of the executive and never subject executive claims to meaningful scrutiny.Executive abuse of the privilege to conceal embarrassing facts
Commentators have suggested that the state secrets privilege might be used as often to prevent disclosure of embarrassing facts as to protect legitimate secrets. Or, in the words of Professors William G. Weaver and Robert M. Pallitto in an article in the Political Science QuarterlyPolitical Science Quarterly
Political Science Quarterly is an American scholarly journal covering government, politics and policy, published continuously since 1886 by the Academy of Political Science. It is the oldest political science journal in the United States....
:
"[T]he incentive on the part of administrators is to use the privilege to avoid embarrassment, handicap political enemies, and to prevent criminal investigation of administrative action."
In several prominent cases, the evidence that the government successfully excluded was later revealed to contain no state secrets. i.e. United States v. Reynolds, Sterling v. Tenet, Edmonds v. Department of Justice and the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
.
Expansion into a justiciability doctrine
Some academics and practitioners have criticized the expansion of the state secrets privilege from an evidentiary privilege (designed to exclude certain pieces of evidence) to a justiciability doctrine (designed to exclude entire lawsuits). Under its original formulation, the state secrets privilege was meant only to exclude a very narrow class of evidence whose revelation would harm national security. However, in a large percentage of recent cases, courts have gone a step further, dismissing entire cases in which the government asserts the privilege, in essence converting an evidentiary rule into a justiciability rule. The government response has been that in certain cases, the subject of the case is itself privileged. In these cases, the government argues, there is no plausible way to respond to a complaint without revealing state secrets.Elimination of judicial check on executive power
Glenn GreenwaldGlenn Greenwald
Glenn Greenwald is an American lawyer, columnist, blogger, and author. Greenwald worked as a constitutional and civil rights litigator before becoming a contributor to Salon.com, where he focuses on political and legal topics...
alleges that the Bush administration attempted to expand executive power
Executive Power
Executive Power is Vince Flynn's fifth novel, and the fourth to feature Mitch Rapp, an American agent that works for the CIA as an operative for a covert counter terrorism unit called the "Orion Team."-Plot summary:...
, as evidenced by the unitary executive theory
Unitary executive theory
The unitary executive theory is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.Although that...
propagated by John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
. The theory suggests that the President, as Commander-in-Chief
Commander-in-Chief
A commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...
, cannot be bound by Congress or any law, national or international. By invoking the state secrets privilege in cases involving actions taken in the war on terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
(i.e. extraordinary rendition
Extraordinary rendition
Extraordinary rendition is the abduction and illegal transfer of a person from one nation to another. "Torture by proxy" is used by some critics to describe situations in which the United States and the United Kingdom have transferred suspected terrorists to other countries in order to torture the...
, allegations of torture
Abu Ghraib torture and prisoner abuse
Beginning in 2004, human rights violations in the form of physical, psychological, and sexual abuse, including torture, rape, sodomy, and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention...
, allegedly violating the Foreign Intelligence Surveillance Act
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
) Greenwald opines the administration tried to evade judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of these claims of exceptional war powers. In effect, this is preventing a judicial ruling determining whether there is a legal basis for such expansive executive power. With that in mind, applying this privilege makes impeachment
Impeachment
Impeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....
the only possible means left for Congress to exercise their duty to uphold the checks and balances constitutionally intended to prevent abuse of power.
Calls for reform
In recent years, a number of commentators have called for legislative reforms to the state secrets privilege. These reforms center around several ideas:- Requiring judges to review each piece of evidence that the executive claims is subject to the privilege.
- Requiring the executive to craft alternative evidence that is not subject to the privilege, for the opposing party to use in place of the original, privileged evidence. Such substitute evidence should only be required when it is possible to do so without harming national security.
- Prohibiting courts from dismissing claims on the basis of the state secrets privilege until after they have reviewed all available evidence.
- Permitting the court to appoint an outside expert to scrutinize the evidence for national security content.
- Excluding illegal government action from the definition of "state secrets," or otherwise allowing the court to address the legality (instead of just the secrecy) of government conduct. This would prevent the government from using the state secrets privilege to conceal its illegal conduct.
On January 22, 2008, Senators Edward Kennedy
Ted Kennedy
Edward Moore "Ted" Kennedy was a United States Senator from Massachusetts and a member of the Democratic Party. Serving almost 47 years, he was the second most senior member of the Senate when he died and is the fourth-longest-serving senator in United States history...
and Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
introduced , the State Secrets Protection Act
State Secrets Protection Act
The State Secrets Protection Act, , was a bill first proposed in the U.S. Senate during the 110th Congress by Senators Kennedy, Leahy, and Specter on January 22, 2008. Senator Kennedy put out a press release explaining the rationale behind introducing the SSPA.Hearings were held before the Senate...
.
United States v. Reynolds
In United States v. Reynolds (1953), the widows of three crew members of a B-29 SuperfortressB-29 Superfortress
The B-29 Superfortress is a four-engine propeller-driven heavy bomber designed by Boeing that was flown primarily by the United States Air Forces in late-World War II and through the Korean War. The B-29 was one of the largest aircraft to see service during World War II...
bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission. The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have alleged government abuse of secrecy in this landmark case.
Richard Horn
Former DEA agent Richard Horn brought a suit against the CIA for bugging his home. The case was dismissed because of the privilege.Richard Horn's case was reinstated on July 20, 2009 by USDC Judge Royce C. Lambreth on the basis that the CIA had engaged in fraud on the court.
On 30 March 2010, as a result of a multi-million dollar settlement agreement between Horn and the government, Lamberth dismissed the underlying case with prejudice. Subsequently, later that same year, in a 22 September order, Lamberth issued a final order vacating his earlier opinions and orders finding that CIA lawyers, Tenet, and Brown had committed fraud on the court. Lamberth also specifically ordered that a sentence be removed from his 30 March 2010 Memorandum. The removed sentence had stated that "allegations of wrongdoing by the government attorneys in this case are not only credible, they are admitted."
Notra Trulock
In February 2002 it was invoked in the case of Notra Trulock, who launched a defamation suit against Los AlamosLos Alamos National Laboratory
Los Alamos National Laboratory is a United States Department of Energy national laboratory, managed and operated by Los Alamos National Security , located in Los Alamos, New Mexico...
scientist Wen Ho Lee
Wen Ho Lee
Dr. Wen Ho Lee is a Taiwan-born Taiwanese American scientist who worked for the University of California at the Los Alamos National Laboratory. He created simulations of nuclear explosions for the purposes of scientific inquiry, as well as for improving the safety and reliability of the US nuclear...
, charged with stealing nuclear secrets; President Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
stated that national security would be compromised if Trulock were allowed to seek damages from Lee; though it resulted in the case being dismissed, another suit was launched directly attacking then-FBI Director Louis Freeh
Louis Freeh
Louis Joseph Freeh was the 5th Director of the Federal Bureau of Investigation, serving from September 1993 to June 2001....
for interfering and falsely invoking the state secrets privilege.
Sibel Edmonds
The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower
Whistleblower
A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private organization, or a company...
.
Thomas Burnett
The privilege was invoked in Thomas Burnett vs. Al Barka Investment & Development Corporation (Civil No. 04ms203) a motion to quash a subpoena for the testimony of Sibel Edmonds. The government's motion to quash based on state secrets privilege was granted in part.Sterling v. Tenet
Jeffrey Sterling was a black CIA agent who started a racial discrimination suit. It was thrown out on account of this privilege.Nira Schwartz
The privilege was invoked in Schwartz vs. TRW (Civil No. 96-3065, Central District, Cal) a Qui-Tam claim by Schwartz. Intervention and assertion of the state secrets privilege, by the government, resulted in case dismissal.Crater Corporation
The privilege was invoked in the United States Court of Appeals for the Federal CircuitUnited States Court of Appeals for the Federal Circuit
-Vacancies and pending nominations:-List of former judges:-Chief judges:Notwithstanding the foregoing, when the court was initially created, Congress had to resolve which chief judge of the predecessor courts would become the first chief judge...
case of Crater Corporation vs. Lucent Technologies
Lucent Technologies
Alcatel-Lucent USA, Inc., originally Lucent Technologies, Inc. is a French-owned technology company composed of what was formerly AT&T Technologies, which included Western Electric and Bell Labs...
Inc. and AT&T Company, (Crater Corp. v. Lucent Technologies, September 7, 2005). Crater was prevented from proceeding with discovery in its patent infringement
Patent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
case (U.S. Patent No. 5,286,129) by the United States' assertion that discovery could cause "extremely grave damage to national security". The infringement case centered on WetMate underwater fiber optic coupling devices beneath the sea.
ACLU vs. NSA/CIA
On May 26, 2006, the U.S. Justice DepartmentUnited States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
filed a motion to dismiss ACLU v. NSA
ACLU v. NSA
American Civil Liberties Union et al., v. National Security Agency / Central et al., 493 F.3d 644 , is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because...
, the ACLU's lawsuit against the NSA by invoking the state secrets privilege.
On July 26, 2006, the case was dismissed. In a different case in Michigan, brought by the ACLU against the NSA on behalf of various scholars, journalists, attorneys, and national non-profit organizations, Judge Anna Diggs Taylor ruled on August 17, 2006, that the program was unconstitutional and should be halted. She upheld the doctrine, but ruled that the government's public statements concerning the operation were admissible and constituted sufficient proof for the case to continue without any privileged evidence or discovery. On July 6, 2007, the Sixth Circuit Court of Appeals threw out Taylor's decision, ruling 2-1 that the ACLU could not produce evidence to prove that the ACLU had been wrongfully wiretapped by the NSA, and therefore did not have the standing to bring such a case to court, regardless of the legality question. On February 19, 2008, the Supreme Court declined to hear the ACLU's appeal. See ACLU v. NSA
ACLU v. NSA
American Civil Liberties Union et al., v. National Security Agency / Central et al., 493 F.3d 644 , is a case decided July 6, 2007, in which the United States Court of Appeals for the Sixth Circuit held that the plaintiffs in the case did not have standing to bring the suit against the NSA, because...
.
Center for Constitutional Rights et al. v. Bush et al.
On May 27, 2006 the Justice Department moved to preempt the Center for Constitutional RightsCenter for Constitutional Rights
Al Odah v. United States:Al Odah is the latest in a series of habeas corpus petitions on behalf of people imprisoned at the Guantanamo Bay detention center. The case challenges the Military Commissions system’s suitability as a habeas corpus substitute and the legality, in general, of detention at...
(CCR) challenge to warrantless domestic surveillance by invoking the state secrets privilege. The Bush Administration is arguing that CCR's case could reveal secrets regarding U.S. national security, and thus the presiding judge must dismiss it without reviewing the evidence.
AT&T and NSA wire-tap case
In April 2006, the Bush administration took initial steps to use the state secrets rule to block a lawsuit against AT&TAT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
and the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
brought by the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
. The EFF alleged that the government has secret computer rooms conducting broad, illegal surveillance of U.S. citizens. Testifying at a January 29, 2008 House Judiciary Committee hearing on reform of the state secrets privilege, EFF attorney Kevin Bankston contended that the administration's interpretation of the privilege was overly broad, and failed to properly consider the evidentiary procedures provided for by Section 1806(f) of the Foreign Intelligence Surveillance Act. However, the case was dismissed on June 3, 2009, citing retroactive legislation (section 802 of the Foreign Intelligence Surveillance Act) stating that
Khalid El-Masri
In May 2006, the illegal detention case of Khalid El-MasriKhalid El-Masri
Khalid El-Masri is a German citizen who was kidnapped in the Republic of Macedonia, flown to Afghanistan, allegedly beaten, stripped, raped, and interrogated and tortured by the CIA for several months as a part of the War on Terror, and then released...
was dismissed based on the privilege, which was invoked by the Central Intelligence Agency
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
(CIA). Khalid El-Masri
Khalid El-Masri
Khalid El-Masri is a German citizen who was kidnapped in the Republic of Macedonia, flown to Afghanistan, allegedly beaten, stripped, raped, and interrogated and tortured by the CIA for several months as a part of the War on Terror, and then released...
alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. Judge T.S. Ellis, III of the U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. http://www.aclu.org/safefree/torture/25606prs20060519.html. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. http://www.nytimes.com/packages/pdf/world/20070303_MASRI.pdf On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.
Maher Arar
The privilege was invoked against a case where Maher ArarMaher Arar
Maher Arar is a telecommunications engineer with dual Syrian and Canadian citizenship who resides in Canada. Arar's story is frequently referred to as "extraordinary rendition" but the U.S. government insisted it was a case of deportation.Arar was detained during a layover at John F...
, a wrongfully-accused and tortured victim, sought to sue Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
John Ashcroft
John Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...
for his role in deporting Arar to Syria
Syria
Syria , officially the Syrian Arab Republic , is a country in Western Asia, bordering Lebanon and the Mediterranean Sea to the West, Turkey to the north, Iraq to the east, Jordan to the south, and Israel to the southwest....
to face torture and extract false confessions. It was formally invoked by Deputy Attorney General
United States Deputy Attorney General
United States Deputy Attorney General is the second-highest-ranking official in the United States Department of Justice. In the United States federal government, the Deputy Attorney General oversees the day-to-day operation of the Department of Justice, and may act as Attorney General during the...
James B. Comey
James B. Comey
James B. Comey, Jr. was United States Deputy Attorney General, serving in President George W. Bush's administration. As Deputy Attorney General, Comey was the second-highest ranking official in the United States Department of Justice and ran the day-to-day operations of the Department, serving in...
in legal papers filed in the United States District Court for the Eastern District of New York
United States District Court for the Eastern District of New York
The United States District Court for the Eastern District of New York is the federal district court whose jurisdiction comprises the entirety of Long Island and Staten Island...
. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.
Jane and John Doe
On January 4, 2007 District Court Judge Laura Taylor Swain ordered the dismissal of Jane Doe et al. v. CIA, 05 Civ. 7939 based on the state secrets privilege. Jane Doe and her children sued the CIA for money damages after her husband's covert employment with the CIA was "terminated immediately for unspecified reasons".http://www.fas.org/sgp/jud/statesec/doe010407.pdf.Quotes
- "Because it is so powerful and can trample legitimate claims against the government, the state secrets privilege is not to be lightly invoked" – (United States v. ReynoldsUnited States v. ReynoldsUnited States v. Reynolds, , is a landmark legal case in 1953 that saw the formal recognition of State Secrets Privilege, a judicially recognized extension of presidential power.- Overview :...
, 345 U.S. 1, 7 (1953)) http://www.fas.org/sgp/news/secrecy/2002/04/042302.html
- "The state secrets privilege is a common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
evidentiary rule that allows the government to withhold information from discovery when disclosure would be inimical to national security." – Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991).
See also
- Espionage Act of 1917Espionage Act of 1917The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...
- Executive privilegeExecutive privilegeIn the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government...
- Extraordinary rendition by the United States
- Mosaic theoryMosaic theoryMosaic theory, also referred to more colloquially as the scuttlebutt method by Philip Fisher in his seminal work Common Stocks and Uncommon Profits, in finance is the method used in security analysis to gather information about a corporation. Mosaic theory involves collecting information from...
- Unitary executive theoryUnitary executive theoryThe unitary executive theory is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.Although that...
- WhistleblowerWhistleblowerA whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private organization, or a company...
- Federal Tort Claims ActFederal Tort Claims ActThe Federal Tort Claims Act or "FTCA", , is a statute enacted by the United States Congress in 1948. "Federal Tort Claims Act" was also previously the official short title passed by the Seventy-ninth Congress on August 2, 1946 as Title IV of the Legislative Reorganization Act, 60 Stat...
- Classified Information Procedures ActClassified Information Procedures ActThe Classified Information Procedures Act or , is codified as the third appendix to Title18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is .-Legislative Revision History:...
, Silent witness ruleSilent witness ruleThe silent witness rule is the use of 'substitutions' when referring to sensitive information in the United States open courtroom jury trial system. The phrase was first used in US v. Zettl, in 1987. An example of a substitution method is the use of code-words on a 'key card', to which witnesses... - State Secrets Protection ActState Secrets Protection ActThe State Secrets Protection Act, , was a bill first proposed in the U.S. Senate during the 110th Congress by Senators Kennedy, Leahy, and Specter on January 22, 2008. Senator Kennedy put out a press release explaining the rationale behind introducing the SSPA.Hearings were held before the Senate...
- Silent witness ruleSilent witness ruleThe silent witness rule is the use of 'substitutions' when referring to sensitive information in the United States open courtroom jury trial system. The phrase was first used in US v. Zettl, in 1987. An example of a substitution method is the use of code-words on a 'key card', to which witnesses...
External links
- In The Name Of National Security: Unchecked Presidential Power And The Reynolds Case, Louis Fisher. Lawrence: University Press of Kansas, 2006, ISBN 0700614648.
- State Secrets and the Limits of National Security Litigation Robert ChesneyRobert M. ChesneyRobert M. Chesney is an American lawyer and Professor of law at The University of Texas School of Law.He is also a fellow at the Brookings Institute....
, Wake Forest UniversityWake Forest UniversityWake Forest University is a private, coeducational university in the U.S. state of North Carolina, founded in 1834. The university received its name from its original location in Wake Forest, north of Raleigh, North Carolina, the state capital. The Reynolda Campus, the university's main campus, is...
– School of Law - The State Secrets Privilege and Separation of Powers AMANDA FROST, American UniversityAmerican UniversityAmerican University is a private, Methodist, liberal arts, and research university in Washington, D.C. The university was chartered by an Act of Congress on December 5, 1892 as "The American University", which was approved by President Benjamin Harrison on February 24, 1893...
– Washington College of LawWashington College of LawAmerican University Washington College of Law is the law school of American University. It is located on Massachusetts Avenue in the Spring Valley neighborhood of northwest Washington. WCL is ranked 50th among law schools by US News and World Report... - Selected Case Files Involving "State Secrets" Project on Government Secrecy, Federation of American ScientistsFederation of American ScientistsThe Federation of American Scientists is a nonpartisan, 501 organization intent on using science and scientific analysis to attempt make the world more secure. FAS was founded in 1945 by scientists who worked on the Manhattan Project to develop the first atomic bombs...