There was a time when it seemed that the administration would have to bare all in court. The warrantless wiretapping program, the secret prisons, the enhanced interrogation techniques and the legal opinions behind them all have been the subject of civil lawsuits. None has succeeded (yet) in the way the plaintiffs had hoped. The government’s weapon, according to a story deep in today’s Washington Post, has been the state secrets privilege, which allows the government to switch off lawsuits on national security grounds.
The law provides that judges can dismiss a case, even if it appears to have merit, to prevent potentially harmful information from escaping in court. (Click here for our report on the use of the privilege in civil suits against telecom companies believed to have cooperated with the NSA in its surveillance program.) And according to some in Congress, the Bush administration has used state secrets privilege excessively.
The issue was the subject of a hearing in the House Judiciary Committee today. Sen. Edward Kennedy (D-Mass.) has called for congressional oversight of the government’s use of the privilege. On the floor of the Senate last week, Kennedy said the adminstration's reliance on the privilege had “dramatically increased,” since 9/11, though the exact numbers are a matter of some dispute.
Some say the increase is a function of more covert operations since 9/11 and others say the government’s use of the privilege hasn’t increased at all. The Post cites a study by Robert Chesney, an associate professor at Wake Forest University School of Law, showing that the Bush administration has invoked the state secrets privilege 20 times since 2001, while it was invoked 26 times from 1991 to 2000 and 23 times from 1981 to 1990.
“There's this strong desire to show that this is something the Bush administration has seized upon to put things under the rug," Chesney told the Post. "They have seized on it, but they also have been confronted with dozens and dozens of lawsuits seeking to explore classified programs."
Here are two statements given at the hearing today from H. Thomas Wells Jr., president-elect of the American Bar Association, and Judith Loether, a Boston native whose father was killed nearly 60 years ago in a B-29 Superfortress crash.
Loether testified that the government refused to turn over the accident report at the time because it contained sensitive information about electronic equipment on the plane. Her mother and two other widows sued for the information, and the case eventually landed in the Supreme Court. The 1953 decision in United States v. Reynolds recognized the executive's right to withhold potentially damaging national security information and established the state secrets privilege.
When the accident report was declassified and released in 2000, Loether discovered that it contained no references to secret technology; rather, it documented a series of malfunctions and pilot errors that the Air Force had sought to conceal from her mother and the others, Loether said.