State Secrets, State Shame

It must be pretty easy being a lawyer for the government these days. Instead of coming up with an actual legal argument to defend some pretty indefensible actions, they just cry "state secrets!".

I guess you can't really blame them, since the strategy seems to be working. The government has invoked this privilege in a number of our cases lately in an effort to short circuit the judicial process and stymie an investigation. Just two examples where it was used successfully:

In el-Masri v Tenet, the government stopped an attempt by Khaled El-Masri, a German citizen born in Kuwait, to seek redress after he was erroneously kidnapped by the CIA and transported to a secret prison in Afghanistan, where he was tortured.

In Edmonds v. DOJ, the court dismissed the case of Sibel Edmonds, a former FBI translator who was fired in retaliation for reporting security breaches and possible espionage within the Bureau.

The government is now trying to cite state secrets in the ACLU's challenge to the NSA's warrantless wiretap program.

In the past, the state secrets privilege was used very narrowly, and it when it was used successfully, the case would simply go forward without the specified evidence. Now the Bush Administration routinely invokes the state secrets privilege at the very beginning of a case in an effort to get the whole case dismissed.

Want to know a little bit more about this origins of this dubious legal strategy? I knew you did. This is from those helpful folks in our national office.

Nothing demonstrates the dangers of the state secrets privilege better than United States v. Reynolds, the Supreme Court's first and last comprehensive statement on the "state secrets" privilege. In October 1948 Al Palya and eight other men died when their military plane crashed into a Georgia field. Palya's widow and two others filed a lawsuit against the Air Force alleging that shoddy maintenance had led to the crash. The government insisted that disclosing the accident report would harm national security, and the Supreme Court ruled in their favor. However, when the military finally declassified old reports in 2004, the family learned what they suspected all along: the report contained no secrets, but did expose the Air Force's failure to make needed repairs to its B-29 fleet. The state secrets privilege was born on a lie.

Depressed yet?