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ACLU tells Senate: Stop Bush's abuse of 'state secrets'
Nick Juliano
Published: Thursday April 24, 2008

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Update: State Secrets bill passes Senate Judiciary Committee

The Senate Judiciary Committee on Thursday approved a bill aimed at reigning in what critics see as President Bush's abuse of his state secrets privilege.

"Congress needs to ensure—and the American people need to feel confident—that the courts are adjudicating the privilege properly and not just giving the Executive a free pass," Sen. Edward Kennedy (D-MA), the bill's primary sponsor, said in a press release. "This legislation is not just about safeguarding the rights of private parties, important as that is. It’s also about safeguarding the public interest, shared by all Americans, in having an executive branch that complies with the law and the Constitution and in preserving the integrity of our courts. No one in America should be above the law. That’s why this legislation is so critical and why it has such broad support."

The committee's ranking Republican, Sen. Arlen Specter of Pennsylvania, also sponsored the bill, which is headed to the full Senate.

"While national security must be protected," he said, "there must also be meaningful oversight by the courts and Congress to ensure the Executive branch does not misuse the privilege.”

Civil liberties group says administration invokes privilege to prevent court oversight

The American Civil Liberties Union is pressing the Senate to rebuke the Bush administration's over-eager invocation of its state secrets privilege to block all manner of judicial oversight of its most controversial programs, including extraordinary rendition and warrantless wiretapping.

The Senate Judiciary Committee is meeting Thursday to finalize the State Secrets Protection Act sponsored by Sens. Edward Kennedy (D-MA) and Arlen Specter (R-PA).

“The administration’s frequent and broad use of the state secrets privilege goes to the very root of its abuse of power,” Caroline Fredrickson, director of the ACLU Washington Legislative Office, said in a news release. “The privilege has been misused and abused for long enough. Senator Kennedy’s legislation will allow for a court to review the government’s national security claims and will rightly reinstate the role of the judiciary.”

The ACLU is representing Khaled El-Masri, a German citizen who was kidnapped by the CIA as part of its rendition program, in a lawsuit against the government. El-Masri, whose kidnapping came as part of the CIA's extraordinary rendition program, is innocent, the ACLU says. He was transported to Afghanistan where he says he was beaten and tortured.

The Bush administration invoked state secrets to thwart El-Masri's lawsuit, so the ACLU earlier this month appealed to the Inter-American Commission on Human Rights, an autonomous body of the Organization of American States of which the US is a member. It is headquartered in Washington.

The ACLU is also working with the Electronic Frontier Foundation with plaintiffs suing telecommunications companies alleging they violated privacy laws by facilitating President Bush's warrantless wiretapping program. The administration has invoked state secrets in those 40 or so lawsuits, as well.

Kennedy says his bill would regulate use of the state secrets privilege to protect legitimate classified information from being released while still ensuring that courts have a role in checking the executive branch, according to a press release.

The goal of our bill is to protect legitimate state secrets from disclosure, prevent misuse of the privilege, and allow litigants to have their day in court. Federal judges already handle sensitive information under the Classified Information Procedures Act, the Freedom of Information Act, and the Foreign Intelligence Surveillance Act. There is no reason they can’t do so in civil cases as well.

Our bill has already been endorsed by a number of legal groups and scholars. As a New York Times editorial stated, it will “give victims fair access to the courts and make it harder for the government to hide illegal or embarrassing conduct behind unsupported claims. . . . . Of course, legitimate secrets need to be protected, and the legislation contains safeguards to ensure that.” Similar editorials have been published by the San Francisco Chronicle, the Salt Lake Tribune, and numerous legal blogs.

In a letter (.pdf) to the Judiciary Committee, the ACLU argued that the administration's interpretation of state secrets was unconstitutional and at odds with the basic idea of separation of powers.

"By claiming powers that neither the legislature nor the judiciary can properly regulate, the Bush administration has endeavored to upend this delicate balance," ACLU lawyers wrote. "In Federalist No. 47 James Madison warned, 'The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.'"