Court Ruling Challenges Feds' Secrecy

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August 20, 2007 12:41 PM

A new court decision could begin to roll back some post-9/11 government secrecy that has forced nearly two dozen intelligence-related cases out of federal courts without rulings.

In a ruling unsealed last month, a federal appeals court questioned the application of the so-called "state secrets" privilege, which government lawyers can use to encourage a judge to drop a case by arguing it jeopardizes national security.

By using the privilege, government lawyers assert that if the case were to continue, they could be forced to divulge secrets that are vital to the nation's security. If judges agree -- as they nearly always do -- they dismiss the case.

In a secret June ruling, the D.C. Circuit Court of Appeals overturned the dismissal on those grounds of a 1994 suit by a former Drug Enforcement Administration official who claimed the U.S. government had illegally wiretapped his communications when he was working out of Rangoon, Burma.

The state secrets privilege was not broad enough to throw out the entire case, the court ruled. With sufficient unclassified evidence already on hand, the court determined the case should be allowed to proceed.

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The ruling could have an impact on current lawsuits involving classified programs, including suits against AT&T and the National Security Agency over the Terrorist Surveillance Program (TSP), which is alleged to have involved data and communications of Americans, according to experts.

The government has tried to get some of those cases dismissed in their early stages by claiming the state secrets privilege; so far, the courts have allowed the suits to proceed.

The U.S. government used the state secrets claim sparingly from its creation in 1953 to 2001, but it has invoked it in roughly two dozen cases between the Sept. 11, 2001 terrorist attacks and last year, according to a 2006 report by the watchdog coalition OpenTheGovernment.org.

Government lawyers have used the state secrets claim to successfully derail a suit by Maher Arar, the Syrian-born Canadian citizen who was detained in the U.S. and then "rendered" to Syria, where he says he was tortured. Subsequent investigations have determined Arar had no ties to terrorism. In a separate trial in Canada, Arar recently won a $15 million judgment against the Canadian government for its role in his mistreatment.

The state secrets claim also derailed a suit by German national Khaled el-Masri, who said he was mistakenly kidnapped, tortured and held for five months by U.S. operatives as part of the controversial anti-terrorist "extraordinary rendition" program.  A State Department official has reportedly said el-Masri was released because there was insufficient evidence to justify his detention, and U.S. government officials have repeatedly denied that the CIA engages in torture.

"We are starting to slowly see the courts take a step back and raise legitimate questions about the executive branch's invocation of the privilege," said Mark Zaid, a Washington, D.C. lawyer who specializes in intelligence-related lawsuits.

Steven Aftergood, a government secrecy expert, noted the ruling coincided with a new resolution from the American Bar Association urging federal courts not to toss civil cases "solely on the state secrets privilege."

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