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Kia Franklin

State Secrets Privilege Gets Scrutiny

In today's Washington Post, the Bush Administration's use of the state secrets privilege is under examination.

The U.S. government has been increasing its use of the state secrets privilege to avoid disclosure of classified information in civil lawsuits, prompting legislation in the Senate that would provide more congressional oversight of the practice.

Though there have been modest increases in the use of the state secrets privilege every decade since the 1960s, some legal scholars and members of Congress contend that the Bush administration has employed it excessively as it intervened in cases that could expose information about sensitive programs. These include the rendition of detainees to foreign countries for interrogation and cases related to the National Security Agency's use of warrantless wiretaps.

The privilege allows the government to argue that lawsuits -- and the information potentially revealed by them -- could damage national security. It gives judges the power to prevent information from reaching public view or to dismiss cases even if they appear to have merit.

Is the Administration abusing this privilege? Is it being used more often than prior administrations?

Amanda Frost, an assistant professor at American University's Washington College of Law, contends in a 2007 law review article that Congress should provide more oversight of government use of the privilege because the Bush administration "has raised the privilege with greater frequency than ever before, and has more often sought to remove cases entirely from judicial dockets."

Or is it more about how it's being invoked than how many times it's being used?

Kevin Bankston, a lawyer with the Electronic Frontier Foundation, a nonprofit legal organization that has fought the Bush administration's secrecy efforts on the NSA surveillance program, said the state secrets privilege is being abused regardless of the number of times it has been invoked.

"The administration is attempting to use the privilege as a back-door immunity to obtain dismissal of any case that attempts to put the NSA wiretapping issue in front of a judge," said Bankston, who is scheduled to testify at Nadler's hearing today. "It is no secret such a program existed."

Click here to read the full article. And click here to read what the Presidential Platform for Civil Justice has to say about Secret Settlements. The two issues are related in terms of the public's interest in knowing information pertinent to their welfare and health.

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Posted at 1:06 PM, Jan 29, 2008 in Legislation | Tort "Reform" By Procedure/New Wave Tort Reform
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