[Infowarrior] - Abusing The Secrets Shield

[Richard Forno]

Abusing The Secrets Shield

By David Kay and Michael German
Monday, June 18, 2007; Page A17

http://www.washingtonpost.com/wp-dyn/content/article/2007/06/17/AR2007061700
944.html?nav=rss_opinion/columns

In 1953 the widows of three civilian contractors killed when the military
aircraft on which they were testing equipment crashed sought government
documents to support their claim of negligence. The Air Force refused to
produce the accident report, even for private review by the judge, asserting
the "state secrets privilege" to withhold evidence that would jeopardize
national security. The trial court ruled in favor of the widows, but the
Supreme Court sided with the government and blocked review of the documents.

The Reynolds decision, as that case came to be known, set a precedent
establishing the executive branch's ability to restrict, in the name of
national security, what evidence can be considered at trial. As veterans of
the fight against domestic and international terrorism since before that war
had a name, we appreciate the need to keep sensitive national security
information from the public eye for reasonable periods of time to protect
ongoing operations. However, the executive branch should not be allowed to
extend that shield to hide evidence that is "sensitive" simply because it is
embarrassing or, worse, demonstrates wrongdoing.

Lately the line between sensitive national security information and
information that the government would, for other reasons, prefer to keep
secret has been blurred. In December 2003, Khaled el-Masri, a German
citizen, was detained by the CIA, drugged, beaten, flown to Afghanistan and
held without charge in a squalid prison for four months. The CIA, under the
leadership of George Tenet, realized that it had the wrong man, but rather
than apologize, agents abandoned Masri on a hilltop in Albania, apparently
hoping that no one would believe his story. When Masri filed a lawsuit,
Tenet's successor, Porter Goss, stepped in and asserted the state secrets
privilege. Without demanding production of a single document allegedly
subject to the privilege, the judge dismissed the case.

In recent months, the Justice Department has claimed the privilege in
lawsuits brought against Verizon and AT&T for providing subscribers'
telecommunications records to the National Security Agency as part of its
domestic surveillance program. Justice Department lawyers cited the Masri
decision in arguing for dismissal, claiming that the evidence the plaintiffs
would need to litigate the case was so sensitive that not even the judge
should review it. Such twisted logic would be laughable were the stakes not
so high.

Those whose search for justice has been quashed by such executive bullying
are often shocked to learn that Congress has never acted to codify the state
secrets privilege. It considered doing so in the 1970s but specifically
chose not to include the privilege in the federal rules of evidence.
Nonetheless, dating from its application in the Reynolds case, the state
secrets privilege has been repeatedly invoked, often with disturbing
results. This is why we, in cooperation with the Constitution Project, have
joined with a bipartisan coalition of policy experts, legal scholars and
former government officials in calling on Congress to limit the privilege's
use.

Congress should establish that the executive branch's ability to restrict
disclosure of evidence is qualified, not absolute. Federal agencies should
not be allowed to dodge even a judge's scrutiny by crying "state secret."
And Congress should instruct judges to privately review all the evidence
that the executive claims is privileged and independently determine if
releasing it would harm national security.

In the 1990s, the privileged documents of the Reynolds case were
declassified. The only "sensitive" information in the accident report was
that the aircraft carrying those contractors was in miserable condition
before it took off. We may never know the full details of the CIA's
treatment of Khaled el-Masri (who is seeking review of his case by the
Supreme Court) or of the NSA's eavesdropping on U.S. citizens. If an
independent judge reviews the evidence in those cases and finds that its
disclosure would jeopardize national security, we will support protecting
such intelligence, whenever possible in a way that does not deny justice to
those harmed by government wrongdoing. The founders of this nation trusted
judges to serve as a check against the abuse of executive power; surely we
must do the same.

Liberty and security are mutually reinforcing. We can -- and, to remain true
to our American values, must -- demand both from our government. An
independent judge should determine what information would be harmful if
released and what would demonstrate wrongdoing or simply be embarrassing.
History has shown that those who have something to lose are remarkably poor
judges of the difference.

David Kay led the Iraq Survey Group in its search for weapons of mass
destruction in 2003-04 and previously served as a weapons inspector with the
International Atomic Energy Agency. Michael German is a policy counsel at
the American Civil Liberties Union and an adjunct professor at the National
Defense University.