Constitution Project Urges Justice Department to Abandon Overbroad Secrecy Claims

In a letter to Attorney General Eric Holder, Constitution
Project President and Founder Virginia Sloan
urged the Department of Justice to abandon the broad secrecy claims originally
made by the Bush administration in a torture case scheduled for argument on
Monday.

"We call on the new administration to demonstrate its
commitment to transparency, accountability, and the rule of law by allowing
judicial review of the evidence in the Jeppesen
case. The executive branch should limit its assertion of the state secrets
privilege to actual national security secrets," said Ms. Sloan.

The U.S. Court of Appeals for the Ninth Circuit will
determine whether the trial court properly dismissed a lawsuit on state secrets
privilege grounds. The suit alleges that defense contractor Jeppesen knowingly flew
five people to a foreign country where they were tortured as part of the CIA's
"extraordinary rendition" program. The case is Mohamed v. Jeppesen Dataplan.

The state secrets privilege is a legal doctrine whose
purpose is to prevent public disclosure of particular evidence when the
disclosure would threaten our national security. The Bush Justice Department persuaded
a district court judge that the very
subject of the lawsuit-the CIA rendition program-was itself a state secret,
and that merely litigating the case would threaten national security. The
program has been widely reported in the press.

According to Ms. Sloan, "Attorney General Holder promised
during his confirmation hearing to reexamine all cases where the Justice
Department asserted the state secrets privilege. The Justice Department's
review of the state secrets privilege should begin with this case and result in
its agreement to an independent review of the evidence by the trial judge and
the administration's repudiation of the Bush administration's broad secrecy
claims. The trial judge, not the executive branch, should determine what
evidence the government can legitimately withhold, and whether enough
non-privileged evidence exists to allow the case to proceed."

The full text of Ms. Sloan's letter is included below. In
2007, the Constitution Project released a report signed by a bipartisan
coalition that endorsed reforming
the state secrets privilege. To speak with our policy expert, please
contact Daniel Schuman at dschuman@constitutionproject.org,
202-580-6922. On Friday, February 6, from noon until close of business, please
call 202-577-6100.

TEXT OF LETTER TO ATTORNEY GENERAL HOLDER FROM CONSTITUTION PROJECT
PRESIDENT AND FOUNDER VIRGINIA SLOAN

Dear Attorney General Holder:

I am writing on behalf of the Constitution Project to urge
you, in connection with a case to be argued on Monday, to fulfill the promise
you made during your confirmation hearings to reevaluate every pending case in
which the government had previously invoked the state secrets privilege. As you
may be aware, Monday will bring a major test of your commitment to rein in
extreme claims of secrecy. The U.S. Court of Appeals for the Ninth Circuit will
hear argument in Mohamed v. Jeppesen
Dataplan, which concerns allegations by five people that defense contractor
(and Boeing subsidiary) Jeppesen flew them to a foreign country where they were
tortured as part of the CIA's program of "extraordinary rendition." The Bush
administration intervened in the case on behalf of Jeppesen, persuading the
trial court to dismiss the lawsuit on the basis of the state secrets privilege.

The Constitution Project is an independent think tank that
promotes and defends constitutional safeguards. Members of a bipartisan task
force we convened have developed recommendations for reforming the state
secrets privilege, available at https://www.constitutionproject.org/pdf/Reforming_the_State_Secrets_Privilege_Statement1.pdf.
We urge the executive branch to invoke the privilege sparingly and call on the
courts to independently review state secrets claims, in order to respect
constitutional rights, ensure government accountability, and promote fairness
in the courtroom.

We believe that, as described in an op-ed to be published
shortly by two of our committee members, the Justice Department should apply
those principles to this case, rather than those relied upon by your
predecessor. David E. Birenbaum, former U.S. Ambassador to the UN for UN
Management and Reform, and David Kay, former Special Advisor on the Search for
Iraqi Weapons of Mass Destruction to the Director of Central Intelligence,
explain that although the state secrets privilege serves an important purpose,
its mere invocation should not automatically terminate lawsuits that concern
national security programs.

We recognize that there may be a valid state secrets claim
regarding some particular pieces of evidence relevant to the Jeppesen case. However, we urge you to
abandon the Bush administration's broad secrecy claims and agree to an
independent review by the trial judge to determine what evidence should
legitimately be withheld. The judge should then decide whether enough
non-privileged evidence exists to allow the case to proceed.

We call on the new administration to demonstrate its
commitment to transparency, accountability, and the rule of law by allowing
judicial review of the state secrets claims in the Jeppesen case, and limiting its claims of privilege to actual
national security secrets.

Sincerely,

Virginia E. Sloan President The Constitution Project