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Tuesday, January 29, 2008; A17

Greater Use of Privilege Spurs Concern

By Josh White
Washington Post Staff Writer

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.
Sen. Edward M. Kennedy (D-Mass.), in a speech on the Senate floor last week, said
one reason for more congressional oversight is the risk that the privilege "will be
overused and abused." He said the Bush administration's use of the privilege since
the Sept. 11, 2001, terrorist attacks "has dramatically increased, and the harmful
consequences of its irregular application by courts have become painfully clear."
Kennedy cited statistics that show the Bush administration has used the state secrets
privilege substantially more, on a percentage basis, than previous administrations to
block or dismiss lawsuits.
The cases include E l-Masri v. Tenet, in which Khaled el-Masri, a German citizen, sued
the U.S. government claiming that he was sent to Afghanistan for interrogation as
part of a secret government program. The case was dismissed after government
lawyers argued that Masri's civil claims could expose state secrets should CIA officials
have to admit or deny the existence of the program or its details.
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."
However, the researcher who totaled the use of the privilege in published legal
opinions said the increase is insignificant. Robert Chesney, an associate professor at
Wake Forest University School of Law, showed that the Bush administration had
invoked the state secrets privilege 20 times since 2001, while the same privilege was
invoked 26 times from 1991 to 2000 and 23 times from 1981 to 1990.
Chesney, who published a paper last fall, said yesterday that while the numbers show
an upward trend, administration critics do not take into account the fact that the
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nation has been at war since 2001. As a result, the government is undertaking a
larger number of secret operations.
"There's this strong desire to show that this is something the Bush administration has
seized upon to put things under the rug," Chesney said. "They have seized on it, but
they also have been confronted with dozens and dozens of lawsuits seeking to
explore classified programs."
Rep. Jerrold Nadler (D-N.Y.) has scheduled a hearing on the issue today before a
House Judiciary subcommittee.
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."
Patrick Philbin, an associate deputy attorney general until November 2005, said
yesterday that the statistics do not tell the story about the state secrets privilege.
"I don't think that this administration is applying or using the standard differently,"
said Philbin, who also is scheduled to testify today. "The privilege exists to protect
national security information, and they're using it to do that."