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William Fisher: State Secrets

State Secrets

By William Fisher

As demonstrated by last week's landmark Supreme Court ruling on the legality of military tribunals to try "enemy combatants," the administration of President George W. Bush has consistently sought to expand the power of the presidency in the name of the "Global War on Terror."

The President has claimed he has "inherent rights" under the U.S. Constitution to do "whatever it takes" to protect the American people during times of war - even if that means issuing "signing statements" that have the effect of ignoring or modifying laws passed by Congress, or invoking the so-called State Secrets Privilege to keep potentially embarrassing cases from getting to court.

A "signing statement" is language a president can use to modify or effectively nullify laws passed by Congress. Signing statements have been sparingly used since the early days of the Republic, but President Bush has dramatically increased their use during his six years in office.

Invoking the State Secrets Privilege - claiming that disclosure of sensitive information in a court trial would endanger national security -- is another tactic frequently used by the Bush Administration to stop potentially embarrassing lawsuits against the government. Many of these suits are brought by government employees who allege fraud, mismanagement, or other unlawful conduct, so the State Secrets Privilege has successfully been invoked by the government to silence "whistleblowers."

But now a member of the President's own Republican Party is pushing back against the Administration by introducing a Bill to limit what he considers abuse of the State Secrets tactic.

Christopher Shays, a longtime Republican member of Congress from a heavily Democratic district in Connecticut, believes that the state secrets provision has been used too frequently and with too little public protection. In particular, he is concerned that it will continue to be used to block whistleblower cases.

''If the very people you're suing are the ones who get to use the state secrets privilege, it's a stacked deck,'' says Shays, who has long been a proponent of limiting government secrecy.

Shays has introduced a proposal that would limit the use of the state secrets privilege in blocking whistleblowers' lawsuits. It proposes that if an Inspector General investigation supports the overall claim of the whistleblower, the government would no longer be able to seek dismissal by claiming the state secrets privilege. Instead, the case would automatically be ruled in favor of the whistleblower without any public discussion of the details.

In cases where no Inspector General investigation has been conducted, the administration would be required to explain to Congress why the use of the State Secrets privilege is necessary, and demonstrate that efforts have been made to settle the case amicably.

The bill containing the Shays language was reported out of the House Government Reform Committee with support from both Republicans and Democrats.

Based on a 1953 Supreme Court ruling, the State Secrets privilege allows the executive branch to declare certain materials or topics completely exempt from disclosure or review by any body.

Rarely used by past presidents, it has been invoked 24 times by the Bush administration, more than any other administration over a six-year period.

During the close to six years of the Bush administration, the privilege has been used almost half the number of times it was invoked between 1953 and 2001, when the combined use of eight presidents -- Eisenhower, Kennedy, Nixon, Ford, Carter, Reagan, the first Bush and Clinton - amounted to 55 claims of state secrets.

While in the past the power was used to keep specific documents from disclosure, recently the privilege has been invoked to choke off entire lawsuits against the government.

It is a trend that has many concerned, including Shays.

David Cole, a professor at Georgetown University Law Center and an internationally recognized authority on constitutional law, told us, "The Administration has argued that the President has unilateral executive power in the 'war on terror' to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a 'state secret'."

The administration's use of the privilege has involved cases ranging from accusations of CIA kidnapping and abuse to government employees who say they have witnessed wrongdoing by other government employees.

For example, it was used to compel the courts to dismiss a lawsuit brought by a German man who had been held in Afghanistan for five months after being mistaken for a suspected terrorist with the same name, Khaled el-Masri. He filed suit against George Tenet, the then-head of the Central Intelligence Agency and ten unnamed agency employees, challenging the CIA's practice of abducting foreign nationals for detention and interrogation in secret prisons overseas. His case was dismissed.

In another case involving the CIA, a Canadian citizen, Maher Arar, sought to sue the U.S. Government for detaining him at New York's John F. Kennedy Airport as he was returning from a vacation in North Africa, then shipping him off to Syria, where he was jailed for ten months, and claims he was tortured before being released without charge. His suit was also dismissed.

The Justice Department has recently invoked the privilege to ask the courts to throw out three lawsuits against the National Security Agency's warrantless domestic spying program. One suit has been brought by the Electronic Frontier Foundation against AT&T; the two other suits were filed against the federal government by the American Civil Liberties Union and the Center for Constitutional Rights.

The state secrets privilege was also used to shut down a lawsuit by national security whistleblower Sibel Edmonds, an ex-translator for the Federal Bureau of Investigation, who was fired after accusing coworkers of security breaches and intentionally slow work performance. Edmunds filed a whistleblower lawsuit against the Department of Justice, which was dismissed after the U.S. Attorney General's office invoked the state secrets privilege.

Despite its bipartisan support, it is unclear whether the Shays proposal stands a chance of coming to a vote of the full Congress. Moreover, there is no companion measure in the Senate.

However, the Senate acted this month to fill a gap in whistleblower protection law in light of a recent Supreme Court ruling which may have weakened protections for whistleblowers. It passed the Federal Employee Protection of Disclosures Act, which would strengthen protections for federal government employees who expose government inadequacies.

In May, the Supreme Court ruled that public employees who report suspicions of corruption or mismanagement in the course of their duties are not protected under the First Amendment to the U.S. Constitution, which guarantees free speech.

In a ruling many found ambiguous and confusing, the high court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Court's ruling compelled whistleblower advocates in the Senate to act quickly to strengthen whistleblower protections.

However, whistleblowers from government agencies involved in national security matters have far fewer protections and have been lobbying for special legislation to address their situation. Thus far they have been unsuccessful.


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