Bills would limit use of 'state secrets'

Obama backs privilege in torture case

By Joseph Williams
Globe Staff / February 12, 2009
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WASHINGTON - House and Senate committees yesterday introduced bills that would sharply curtail the government's use of the "state secrets" privilege, a policy used by President Bush to argue that a lawsuit involving allegations of torture should be dismissed - and a position that the Obama administration has now adopted.

Drafted and filed separately by the House and Senate Judiciary committees, the legislation was filed just days after Justice Department lawyers working for the new administration told a federal appeals court that its position did not differ from the Bush administration's: the court should throw out a lawsuit that accuses Jeppesen Inc., of helping the CIA secretly transport five terrorism suspects overseas for harsh interrogations, on the grounds that the suit involved state secrets that, if revealed, could jeopardize national security.

The move surprised the court, angered the American Civil Liberties Union, which brought the case, and caused some legal observers to question why President Obama - who entered office vowing an open, transparent government that would reject harsh interrogations - would adopt Bush's position in a high-profile case alleging torture.

On the campaign trail, Obama had derided the Bush administration for its secrecy, and he signed an executive order banning the use of aggressive interrogation techniques that some critics said bordered on torture.

"The administration's decision this week to adopt its predecessor's argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege," said Representative Jerrold Nadler, a New York Democrat who is one of the House bill's cosponsors.

Nadler said protecting sensitive information "is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases."

Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, said the Senate version of the bill "will help guide the courts to balance the government's interests in secrecy with accountability and the rights of citizens to seek judicial redress" in cases of wrongdoing. The bill, he said, "does not restrict the government's ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill afford to delay consideration of this important legislation."

Caroline Frederickson, director of the ACLU's Washington office, said she was "very pleased" by the legislation, which she called an important step to correct a doctrine that has been abused.

"We're going to work very hard to try and get this legislation passed and signed into law," she said. "Without it, the government will be free going forward to assert claims of state secrets without any neutral party reviewing whether or not there are state secrets at issue in the case."

Yesterday, Justice Department spokesman Matt Miller said that US Attorney General Eric H. Holder Jr. and others will review the legislation, but would not elaborate on why the department took the same position as Bush because the Jeppesen case is still active and, he said, "we don't comment on pending litigation."

Nevertheless, Miller said, "this administration is committed to ensure the American people have access to information they have a right to know, which is why in his first week in office the attorney general ordered that state secrets cases were reviewed" to make sure the privilege had been properly applied.

Holder, he said, "has directed that senior Justice Department officials review all assertions of the privilege" made under Bush "to ensure it's only being involved in legally appropriate situations."

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