State Secrets Fix Introduced in House

With today's introduction of legislation to rein in the overbroad use of the state secrets privilege, the executive branch may soon have one less tool in its chest to stymie legitimate cases against government misconduct. A bill introduced in the House will aim to narrow the scope of the privilege and could open the courthouse doors to people who have suffered real and legitimate harm by the government. The government has attempted to block several important lawsuits with an overbroad and improper assertion of "state secrets," most recently this week in the ACLU's case against Boeing subsidiary Jeppesen DataPlan for its role in facilitating extraordinary rendition.

"For too long, the government has hidden behind an overly-broad interpretation of the state secrets privilege to protect itself from the scrutiny of oversight," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "This bill will ensure that victims of government wrongdoing will be allowed to seek justice."

The bill, the "State Secrets Protection Act of 2009," was introduced by Chairman of the House Judiciary Committee, Congressman John Conyers (D-MI) as well as Congressmen Jerrold Nadler (D-NY), Thomas Petri (R-WI), William Delahunt (D-MA) and Congresswoman Zoe Lofgren (D-CA). A Senate version of the legislation is expected shortly.

On Monday, the Obama Justice Department maintained the position of the Bush administration that the ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan should be dismissed under the state secrets doctrine. Mohamed et al. v. Jeppesen was brought on behalf of five men who were kidnapped and secretly transferred to U.S.-run prisons or foreign intelligence agencies overseas where they were interrogated under torture. The Bush administration intervened in the case, inappropriately asserting the "state secrets" privilege and claiming the case would undermine national security. Oral arguments were presented on Monday in the ACLU's appeal of the dismissal, and the Obama administration adopted the Bush administration's position in the case, reasserting that the entire subject matter of the case is a state secret.

"The Bush administration frequently used the privilege as a form of immunity to block entire cases from going forward and now we've seen the Obama administration follow suit. Abuse of the state secrets privilege is not an abstract concept. It has a real and human cost. To date, no torture victim has had his day in court," said Fredrickson.

"This bill will allow the court to review government claims of national security, thus lowering the wall of the current state secrets privilege to an appropriate hurdle," said Michelle Richardson, ACLU Legislative Counsel. "The current form of the state secrets privilege has allowed the administration to successfully hold off scrutiny of its extraordinary rendition program and its warrantless wiretapping program. The cloak must be lifted and we urge Congress to waste no time in passing this bill."