State Secrets Privilege Dangerously Overbroad

February 13, 2008 12:00 am

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Washington, DC – Today the Senate Judiciary Committee convened to hear testimony on an evidentiary rule known as the state secret privilege. Committee member Senator Edward Kennedy (D-MA) introduced legislation last month to narrow the scope of the privilege. During the Bush administration, the state secrets privilege has been increasingly and improperly used as a shield to prevent investigation into executive branch misconduct. The most notable invocation of the privilege was to stall the case of an innocent German citizen, Khaled El-Masri, who was kidnapped, detained and tortured in a secret overseas prison. His suit against the government was stalled after the administration invoked the privilege.

“The Bush administration consistently uses the claim of state secrets to avoid any scrutiny, sacrificing even the impression of accountability,” said Caroline Fredrickson, director of the American Civil Liberties Union’s Washington Legislative Office. “The violations this administration has inflicted on the Constitution have been severe and systematic. It’s time for Congress to intervene and to reinforce the system of checks and balances.”

ACLU litigators have challenged the Bush administration’s illegal policies of warrantless surveillance, extraordinary rendition and torture in the courts. The administration has frequently invoked the privilege not to protect sensitive evidence from disclosure, but to stymie entire lawsuits alleging executive misconduct – even before any requests for evidence have been made. The ACLU is urging Congress to exercise its constitutional authority and pass legislation to narrow the state secrets privilege, and require courts to exercise independent judicial review over all government state secrets claims.

“The state secrets privilege has been used in recent years as a legal ‘A’ bomb, annihilating cases that may expose the government,” continued Fredrickson. “The cost of those cases being hamstrung is a human cost. For the people who have suffered due to government misconduct, Senator Kennedy’s legislation gives hope that their cases may run their due course to a just result. In the interest of justice, Congress should quickly pass this legislation.”

For more on the ACLU’s work on NSA spying, go to:

For more on the case of Khaled El-Masri and the ACLU’s work on rendition, go to:

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