State Secrets Revisited

STATE SECRETS REVISITED….A couple of days ago I mentioned the “state secrets privilege” that allowed the Bush administration to throw out Khaled El-Masri’s suit against the government for mistakenly kidnapping and torturing him. In Slate today, Henry Lanman provides more detail. The problem, he says, isn’t just that the privilege is being used far more often than it used to be, it’s that it’s being used more broadly. In the past, it was used to exclude specific pieces of evidence that might have compromised national security, but today it’s being used to keep cases from even coming to trial:

The troubling shift today is that in el-Masri and other similar lawsuits ? almost all of which involve important challenges to the government’s conduct since Sept. 11 ? the administration has been routinely asserting the privilege to dismiss the suits in their entirety by claiming that for it to participate in the trials at all would mean revealing state secrets. In other words, in addition to relying on the state secrets doctrine to an unprecedented degree, the administration is now well on its way to transforming it from a narrow evidentiary privilege into something that looks like a doctrine of broad government immunity.

….Despite the burgeoning use of this privilege and the way it’s been used to gut entire cases, the most disturbing aspect of the Bush administration’s expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration’s broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior. And if this tactic persists ? if the administration continues to broadly assert this privilege and courts continue to accept it ? the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the “war on terror” violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it’s a secret.

Read the whole thing. Really.