Greater Use of Privilege Spurs Concern
By Josh White
Washington Post Staff Writer
Tuesday, January 29, 2008; Page A17
The U.S. government has been increasing its use of the state secrets privilege to avoid disclosure of classified information in civil lawsuits, prompting legislation in the Senate that would provide more congressional oversight of the practice.
Though there have been modest increases in the use of the state secrets privilege every decade since the 1960s, some legal scholars and members of Congress contend that the Bush administration has employed it excessively as it intervened in cases that could expose information about sensitive programs. These include the rendition of detainees to foreign countries for interrogation and cases related to the National Security Agency's use of warrantless wiretaps.
The privilege allows the government to argue that lawsuits -- and the information potentially revealed by them -- could damage national security. It gives judges the power to prevent information from reaching public view or to dismiss cases even if they appear to have merit.
Sen. Edward M. Kennedy (D-Mass.), in a speech on the Senate floor last week, said one reason for more congressional oversight is the risk that the privilege "will be overused and abused." He said the Bush administration's use of the privilege since the Sept. 11, 2001, terrorist attacks "has dramatically increased, and the harmful consequences of its irregular application by courts have become painfully clear."
Kennedy cited statistics that show the Bush administration has used the state secrets privilege substantially more, on a percentage basis, than previous administrations to block or dismiss lawsuits.
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http://www.washingtonpost.com/wp-dyn/content/article/2008/01/28/AR2008012802430.html