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Ten years have passed since Bush administration lawyers drafted the infamous"torture memos" that provided legal cover…
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Post-9/11, the Bush administration has expanded the use of the state secrets privilege (SSP) to withhold evidence and dismiss cases that challenge the administration in U.S. courts. In doing so, the Bush administration is threatening judicial oversight and legal challenges of the Executive Branch’s unraveling of civil rights and disregard for human rights in the name of the “war on terror.”
What is the state secrets privilege?
The state secrets privilege (SSP) is a common law privilege that allows the head of an executive department to REFUSE to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relation interests if disclosed.
When and how was the SSP established?
The state secrets privilege originates in England where the law allows the king or queen the “Crown Privilege,” which grants the monarch the absolute right to refuse to share information with Parliament or the courts.
The U.S. Supreme Court then borrowed the SSP almost entirely from the Duncan standard during a Cold War case, Reynolds v. United States, 345 U.S. 1 (1953). . The Court did so without discussing the differences between our system of checks and balances and England’s system where Parliament is all powerful.
What happens when the SSP is used?
When the SSP is invoked, the government submits an affidavit saying that any court proceedings would risk disclosure of secrets that would threaten national security and then asks the court to dismiss the suit based solely on those grounds.
Previous uses of the SSP by the government have most commonly been at the discovery stage, asking the courts to deny people access to documents or witnesses. More recently – and more troublingly – the government has invoked the SSP in the very beginning of cases to dismiss them altogether.
In these cases, the government has argued that to even answer the complaint by confirming or denying its allegations would risk the disclosure of secrets that could cause “exceptionally grave damage to the national security.”
How does the SSP undermine democracy?
The state secrets privilege undermines the very idea of an independent judiciary; contradicts the core idea of judicial review, which is independent judges making independent evaluations of all of the facts; and essentially allows the executive branch to dictate to the federal courts what cases they can and can’t hear.
Defenders of the state secrets privilege justify it with a “greater good” argument—injustice in the individual case is outweighed by the greater good of protecting national security. But this argument ignores another “greater good” argument: that the greater good is actually served by denying the executive a trump card that would allow it to cover up its abuses of power.
How is the Bush administration abusing the SSP?
The Bush administration is using the state secrets privilege far more than any administration and is using it to cover up its own illegal behavior. So far, it has invoked the privilege to dismiss cases that fight illegal government spying on American citizens, challenge the government’s use of torture and rendition, and other cases that seek to hold the Bush administration accountable for abusing executive power and violating the human rights of both citizens and non-citizens.
Instead of merely employing the privilege to deny attorneys access to evidence (as it was used in the past), the Bush administration is using the state secrets privilege to get courts to dismiss cases at their very beginning stages. In doing so, the Bush administration is trying to disarm the courts from being able to check the power of the executive branch.
What can I do?
We need to remember that the state secrets privilege can be overturned at any point by Congress or the Supreme Court. Any push to end the use of this relic of the British monarchy must start with educating others about the Bush administration’s abuse of the state secrets privilege. You can help by handing out this factsheet to your family and friends.