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WASHINGTON – The American Civil Liberties Union testified today about the improper use of the state secrets privilege at a hearing before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The hearing was held to discuss legislation introduced by the subcommittee’s chairman, Representative Jerrold Nadler (D-NY), entitled the “State Secrets Protection Act of 2008” (H.R.5607). The bill would narrow the scope of the privilege by setting appropriate limits on its use.

“The Bush administration has consistently used the state secrets privilege as an alternative form of legal immunity,” said Steven R. Shapiro, ACLU Legal Director who testified today. “As a result, a broad range of executive misconduct has been shielded from judicial review. The state secrets privilege was never meant to shield the government from accountability or deny victims of government misconduct their day in court.”

The state secrets privilege has historically been used to exclude discrete pieces of evidence from trials, but in recent years the Bush administration has asserted the claim with increasing regularity in order to block entire lawsuits and justify withholding information from the public about extraordinary rendition, illegal wiretapping, torture and other breaches of U.S. and international law. The ACLU has been aggressively fighting the assertion of the state secrets privilege in the courtroom, including in its representation of Khaled El-Masri, a victim of the CIA’s extraordinary rendition program whose case was dismissed by a federal court on state secrets grounds. The U.S. Supreme Court, which has not reviewed the privilege for over 50 years, declined to hear the El-Masri case in 2007.

The State Secrets Protection Act would put reasonable checks and balances on the executive branch by ensuring that courts can exercise independent judgment in cases of national importance and protecting the rights of those seeking redress through our court system.

“For those who have had their attempts at justice stymied by improper claims of state secrets, this bill could prop open the courthouse doors once again,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The administration has systematically shut down legitimate cases with its use of this privilege and it is now Congress’ obligation to realign our system of checks and balances. We urge the House to take up and pass Representative Nadler’s bill before other victims of government wrongdoing are denied justice.”

To read Shapiro’s testimony before the House, go to: http://www.aclu.org/safefree/general/36218leg20080731.html