A good article that highlights Shayana Kadidal's understanding and opinions of the State Secrets privilege, and how it is being used by Bushco to warp our justice system. Explains how the origins of this are in British law, not from American ideals and judicial rulings. Shows how Sibel Edmonds and others have been screwed by it.
Notes that the latest invocation was filed shortly before midnight last Friday (you know the slow moving news announcements timeframe of course!) was used to dismiss the challange to the NSA domestifc surveillanced program by the Center for Constitutional Rights...
http://jurist.law.pitt.edu/forumy/2006/05/state-secrets-privilege-and-executive.phpA few minutes before midnight last Friday, the government filed a motion to dismiss the Center for Constitutional Rights'
lawsuit against the National Security Agency's warrantless wiretapping program on the grounds that allowing the litigation to go forward would jeopardize “state secrets.” (Their heavily redacted but still very long brief is available
here.)
It its most basic terms, invocation of the state secrets privilege involves the government submitting an affidavit from a department head saying that any court proceedings would risk disclosure of secrets that would threaten grave damage to national security, and asking the court to dismiss the suit based solely on those grounds. Previous invocations of the privilege by the government have most commonly been at the discovery stage, asking the courts to deny private litigants access to documents or witnesses, but more recently the government has moved to dismiss a spate of cases — most notably torture-rendition cases on behalf of
Maher Arar and Khaled El-Masri —
at the pleading stage. In these cases the government has argued that to even answer the complaint by confirming or denying its allegations would risk the disclosure of secrets that could cause “exceptionally grave damage to the national security.” (This is a particularly perplexing assertion in our case, where administration officials went on an extensive public speaking campaign in defense of the legality of the NSA program; indeed, we filed a motion for summary judgment two months ago based on these public admissions.)
Typically, when faced with sensitive evidence, a court might close the courtroom, place briefs under seal, and make the other side’s attorneys promise not to divulge the information, or even make them seek security clearance in rare cases. In the government’s view, the state secrets privilege says that isn’t good enough for some secrets. For the most sensitive secrets, even the judge cannot be trusted to hear the secret matter. Whether the risk of disclosure is in fact real if litigation is allowed to continue, and whether grave damage to national security will result in the event of disclosure, are purely executive determinations which the court is compelled to accept uncritically. The judge may not call the executive official who executes the affidavit setting forth these determinations into court for further scrutiny of his claims, even in camera. And all this is the case “even where allegations of unlawful or unconstitutional
actions are at issue.” Or so the government’s argument goes.
...
In the Cold War-era case that established the state secrets privilege — United States v. Reynolds, 345 U.S. 1 (1953) — the Supreme Court noted that cases discussing this sort of broad privilege “ha been limited in this country” but that the “English experience has been more extensive.” Essentially our Supreme Court imported the state secrets privilege from British law.
...
Similar cover-ups have been at work in several recent cases where the government has managed to successfully assert the state secrets privilege. One of them involved Sibel Edmonds, a Turkish translator hired by the FBI who was appalled at what she saw inside the agency’s translation section and complained to her superiors. Like many whistleblowers before her, she was fired. She brought suit, and the government successfully argued that the state secrets privilege was an absolute bar to her suit going forward. (Adding insult to injury, she was barred from the courtroom during the argument of her appeal.) The Supreme Court declined to review the case.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
