ACLU Testifies In Support Of Bill To Reform State Secrets Doctrine

The
ACLU testimony before House Subcommittee on the Constitution, Civil
Rights, and Civil Liberties is in support of H.R. 984, "The State
Secrets Protection Act of 2009." Introduced by House Judiciary
Chairman, Congressman John Conyers (D-MI), the bill is intended to
create procedures to prevent the abuse of the privilege.

"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. "No
administration should be able to invoke the state secrets privilege to
avoid judicial scrutiny. It's clear that Congress must step in. The
State Secrets Protection Act will ensure that the privilege is used
properly and those seeking justice will have their day in court."

ACLU
litigators have challenged the Bush administration's illegal policies
of warrantless surveillance, extraordinary rendition and torture in the
courts. The Bush administration frequently invoked the privilege, not
to protect sensitive evidence from disclosure, but to stymie entire
lawsuits alleging government misconduct - even before any requests for
evidence had been made.

Earlier this year,
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. 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. On April 28, 2009, the U.S. Court of Appeals
for the Ninth Circuit rejected the government's argument, holding that
the state secrets privilege must be invoked with respect to discrete
evidence, not an entire lawsuit.

"Time
again, the executive branch has misused the state secrets privilege not
to protect legitimate secrets, but to avoid embarrassment and
accountability for illegal acts," said Ben Wizner, a staff attorney
with the ACLU who will testify at the hearing. "As a consequence of the
Bush and Obama administrations' overbroad use of the privilege, victims
of torture and illegal wiretapping have been denied their day in
court. We hope that Congress will act swiftly to narrow the state
secrets privilege so that the government can no longer hide behind it."

The ACLU's testimony is online at: https://www.aclu.org/safefree/general/39756leg20090604.html