State
Secrets
By William Fisher
08 July,2006
Countercurrents.org
As demonstrated by last week's
landmark Supreme Court ruling on the legality of military tribunals
to try "enemy combatants," the administration of President
George W. Bush has consistently sought to expand the power of the presidency
in the name of the "Global War on Terror."
The President has claimed he has "inherent rights" under the
U.S. Constitution to do "whatever it takes" to protect the
American people during times of war - even if that means issuing "signing
statements" that have the effect of ignoring or modifying laws
passed by Congress, or invoking the so-called State Secrets Privilege
to keep potentially embarrassing cases from getting to court.
A "signing statement" is language a president can use to modify
or effectively nullify laws passed by Congress. Signing statements have
been sparingly used since the early days of the Republic, but President
Bush has dramatically increased their use during his six years in office.
Invoking the State Secrets Privilege - claiming that disclosure of sensitive
information in a court trial would endanger national security -- is
another tactic frequently used by the Bush Administration to stop potentially
embarrassing lawsuits against the government. Many of these suits are
brought by government employees who allege fraud, mismanagement, or
other unlawful conduct, so the State Secrets Privilege has successfully
been invoked by the government to silence "whistleblowers."
But now a member of the President's own Republican Party is pushing
back against the Administration by introducing a Bill to limit what
he considers abuse of the State Secrets tactic.
Christopher Shays, a longtime Republican member of Congress from a heavily
Democratic district in Connecticut, believes that the state secrets
provision has been used too frequently and with too little public protection.
In particular, he is concerned that it will continue to be used to block
whistleblower cases.
''If the very people you're suing are the ones who get to use the state
secrets privilege, it's a stacked deck,'' says Shays, who has long been
a proponent of limiting government secrecy.
Shays has introduced a proposal that would limit the use of the state
secrets privilege in blocking whistleblowers' lawsuits. It proposes
that if an Inspector General investigation supports the overall claim
of the whistleblower, the government would no longer be able to seek
dismissal by claiming the state secrets privilege. Instead, the case
would automatically be ruled in favor of the whistleblower without any
public discussion of the details.
In cases where no Inspector General investigation has been conducted,
the administration would be required to explain to Congress why the
use of the State Secrets privilege is necessary, and demonstrate that
efforts have been made to settle the case amicably.
The bill containing the Shays language was reported out of the House
Government Reform Committee with support from both Republicans and Democrats.
Based on a 1953 Supreme Court ruling, the State Secrets privilege allows
the executive branch to declare certain materials or topics completely
exempt from disclosure or review by any body.
Rarely used by past presidents, it has been invoked 24 times by the
Bush administration, more than any other administration over a six-year
period.
During the close to six years of the Bush administration, the privilege
has been used almost half the number of times it was invoked between
1953 and 2001, when the combined use of eight presidents -- Eisenhower,
Kennedy, Nixon, Ford, Carter, Reagan, the first Bush and Clinton - amounted
to 55 claims of state secrets.
While in the past the power was used to keep specific documents from
disclosure, recently the privilege has been invoked to choke off entire
lawsuits against the government.
It is a trend that has many concerned, including Shays.
David Cole, a professor at Georgetown University Law Center and an internationally
recognized authority on constitutional law, told us, "The Administration
has argued that the President has unilateral executive power in the
'war on terror' to violate even criminal laws, and when it has been
challenged on that assertion, it has argued that the courts can't even
rule on that assertion of power because the alleged criminal violation
is a 'state secret'."
The administration's use of the privilege has involved cases ranging
from accusations of CIA kidnapping and abuse to government employees
who say they have witnessed wrongdoing by other government employees.
For example, it was used to compel the courts to dismiss a lawsuit brought
by a German man who had been held in Afghanistan for five months after
being mistaken for a suspected terrorist with the same name, Khaled
el-Masri. He filed suit against George Tenet, the then-head of the Central
Intelligence Agency and ten unnamed agency employees, challenging the
CIA's practice of abducting foreign nationals for detention and interrogation
in secret prisons overseas. His case was dismissed.
In another case involving the CIA, a Canadian citizen, Maher Arar, sought
to sue the U.S. Government for detaining him at New York's John F. Kennedy
Airport as he was returning from a vacation in North Africa, then shipping
him off to Syria, where he was jailed for ten months, and claims he
was tortured before being released without charge. His suit was also
dismissed.
The Justice Department has recently invoked the privilege to ask the
courts to throw out three lawsuits against the National Security Agency's
warrantless domestic spying program. One suit has been brought by the
Electronic Frontier Foundation against AT&T; the two other suits
were filed against the federal government by the American Civil Liberties
Union and the Center for Constitutional Rights.
The state secrets privilege was also used to shut down a lawsuit by
national security whistleblower Sibel Edmonds, an ex-translator for
the Federal Bureau of Investigation, who was fired after accusing coworkers
of security breaches and intentionally slow work performance. Edmunds
filed a whistleblower lawsuit against the Department of Justice, which
was dismissed after the U.S. Attorney General's office invoked the state
secrets privilege.
Despite its bipartisan support, it is unclear whether the Shays proposal
stands a chance of coming to a vote of the full Congress. Moreover,
there is no companion measure in the Senate.
However, the Senate acted this month to fill a gap in whistleblower
protection law in light of a recent Supreme Court ruling which may have
weakened protections for whistleblowers. It passed the Federal Employee
Protection of Disclosures Act, which would strengthen protections for
federal government employees who expose government inadequacies.
In May, the Supreme Court ruled that public employees who report suspicions
of corruption or mismanagement in the course of their duties are not
protected under the First Amendment to the U.S. Constitution, which
guarantees free speech.
In a ruling many found ambiguous and confusing, the high court held
that "when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications
from employer discipline."
The Court's ruling compelled whistleblower advocates in the Senate to
act quickly to strengthen whistleblower protections.
However, whistleblowers from government agencies involved in national
security matters have far fewer protections and have been lobbying for
special legislation to address their situation. Thus far they have been
unsuccessful.