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WASHINGTON – The ACLU is set to testify today before a key House subcommittee considering legislation to reform the state secrets privilege, an evidentiary rule that has been improperly used to shut down several national security related lawsuits against the federal government. The privilege, which is intended to protect discrete pieces of sensitive evidence at trial, has been asserted by the government to block entire lawsuits before any specific evidence has been considered.
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: /safefree/general/39756leg20090604.html