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February 14, 2008

The State Secrets Privilege is Alive and Well

I have argued a few times in the comments that the Bush Administration has had little trouble convincing judges of the importance of preventing civil and criminal cases from threatening national security. The invocation of state secrets privilege has been upheld in the vast majority of cases in which it has been raised. In fact, it has been overruled in only four cases out of 54 since it was first recognized in 1953. My point is that judges should not be automatically viewed as "the enemy" when it comes to constitutional claims against the Bush Administration or the War on Terror.

For example, the ACLU's lawsuit against Jeppesen Dataplan Inc, a subsidiary of Boeing, for allegedly participating in the CIA's supposed extraordinary rendition of five terror suspects was dismissed yesterday pursuant to state secrets privilege.

"In sum, at the core of plaintiffs' case against Defendant Jeppesen are 'allegations' of covert U.S. military or CIA operations in foreign countries against foreign nationals - clearly a subject matter which is a state secret," Judge James Ware wrote in a ruling issued on Wednesday evening.

[...]

"The Court's review of General Hayden's public and classified declarations confirm that proceeding with this case would jeopardize national security and foreign relations and that no protective procedure can salvage this case," Ware wrote.

The unusual efficacy of the privilege is one of the reasons I was so angered in December by the discovery that CIA officials chose to lie (or omit) to Judge Brinkema in the Moussaoui trial rather than claim state secrets privilege. In fact, the privilege has been so good at keeping the courts from interfering with the prosecution of the War on Terror that Senators Arlen Specter and Ted Kennedy have collaborated to create S. 2533, the misleadingly named State Secrets Protection Act. Their goal is to emasculate the common law privilege by replacing it with this watered-down statute.

h/t gengis.


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posted by Gabriel Malor at 03:50 AM

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