The folks at Wired have a rather scary article about how the government is increasingly making use of an obscure Common Law concept known as the “state secrets privilege” to shut down any legal action they’re not happy with on the basis of it being a threat to foreign policy, military intelligence or national security. This legal precedent can be invoked by the government even in legal cases that they have no direct involvement in and it effectively kills the litigation from proceeding any further. Certainly on the surface it’s understandable why this might be necessary from time to time, but there have been a number of cases in which it was applied that appear to have more to do with ensuring that justice isn’t done than protecting national secrets. One example is a patent infringement lawsuit between the Crater Corporation and Lucent Technologies over a unique new quick-disconnect coupler invented by the folks at Crater which Lucent has effectively stolen because they’re selling it to the government for use in some form of espionage. According to the Wired article:
[A]ccording to French, the inventors agreed to help Lucent try to adapt the Crater Coupler to the company’s needs, with the expectation that Lucent would license the group’s patent if it all worked out. The inventors sent over plans, sketches and a model, and French began consulting and advising a Lucent engineer in monthly phone calls.
After about a year of development and testing, Lucent had good news for the inventors: The device passed all the tests, shaming a competing, clunky design that French says resembled an old thermos. But when the inventors got on the phone with Lucent’s lawyers to discuss license terms, the company dropped a bomb. “Almost the first thing they said was, ‘Well, we don’t have to do anything, because this is under some sort of provision for military secret stuff where we don’t have to pay anything,’” says French.
French felt betrayed. “This was after a year of encouragement, with me helping them and them informing us of their progress,” says French. “That was one hell of a shock.”
So, naturally, the folks at the Crater Corp. filed a lawsuit “alleging patent infringement, trade-secret theft and breach of contract” in 1998, but the patent infringement was soon tossed out due to a federal law that says a company can’t be sued for infringement if the development was for the exclusive use of the government. Some more legal wrangling ensued until the government stepped in and asserted the state secrets privilege:
Never passed by Congress, the privilege has its roots in English common law and was cemented into American jurisprudence by a landmark 1953 Supreme Court case titled U.S. v. Reynolds. In Reynolds, the widows of three men who died in a mysterious Air Force crash sued the government, and U.S. officials tried to quash the lawsuit by claiming that they couldn’t release any information about the accident without endangering national security. The Supreme Court upheld the claim, establishing a legal precedent that today allows the executive branch to block the release of information in any civil suit—even if the government isn’t the one being sued.
According to research by Weaver, an associate professor of political science at the University of Texas, the government invoked the privilege only four more times in the next 23 years. But following the Watergate scandal, the executive branch began applying state secrecy claims more liberally. Between 1977 and 2001, there were at least 51 civil lawsuits in which the government claimed the state secrets privilege—in every case successfully.
“There was more oversight of presidential activity” after Watergate, says Weaver. “In response to that, I think presidents resorted to the state secrets privilege to keep that oversight from cramping their style.”
Since it’s first application, this free pass has been used by the government some 60 times with only five instances being rejected by a judge. Sparingly at first, but with increasing regularity as we move closer to modern day.
Indeed, the list of cases in which the state secrets privilege has been invoked seems a pantheon of injustice. The privilege was upheld in 1982 to prevent former Vietnam War protesters from learning more about an illegal CIA and NSA electronic surveillance effort that targeted them during the 1970s. In 1991, it was used to stop a lawsuit by a banker who’d unwittingly been roped into an illegal CIA money-laundering operation, and who claimed the agency had ruined his career when he tried to get out.
In 1998, workers at the Nevada airbase known colloquially as Area 51 were blocked from learning what chemicals they’d been exposed to during illegal burning of toxic waste by base administrators.
In 2004, the Bush administration resorted to the privilege to silence former FBI translator Sibel Edmonds, who said she was fired from the bureau after reporting security breaches and misconduct in the agency’s translation program. And in perhaps the most disturbing case, this year the Justice Department asserted the privilege to kill a lawsuit by Maher Arar, a Syrian-born Canadian citizen who, in 2002, was picked up by U.S. officials as a suspected terrorist while changing planes at JFK, and promptly shipped off to Syria for a year of imprisonment and torture.
“Here’s a guy who was a victim of a crime, that is, kidnapping, who was sent by us to a foreign country to be tortured to get information for us,” says Weaver. “That violates all kinds of laws and the Convention Against Torture and who knows what else.”
Weaver says the state secrets privilege is a blunt instrument that too often utterly obliterates any further inquiry by the plaintiffs in a civil case. “I’m not saying it’s always invoked for evil purposes—it almost certainly is not. But we can’t tell when it is, and that’s the problem.” He faults Jimmy Carter for being the first president to use the privilege with frequency, and George W. Bush for using it systematically. “This presidency is the first one in history to use the secrecy privilege in a programmatic, organized comprehensive policy,” Weaver says. “It’s the first secrecy presidency.”
The whole article is four pages long and a very disturbing read especially in light of how the Bush Administration has practically made it a standard tool in their administration for silencing stuff they’re not happy about. Bush even extended the power further in 2001 with Executive Order 13233 which allowed “former Presidents, and the offspring and descendants of former presidents, to invoke it to bar records from their tenure.” A move that has drawn considerable criticism.
This entry was originally submitted by Neodromos, but I’ve taken the time to flesh it out a bit.