Obama’s Answer For FISA & Torture Litigation

(11 am. – promoted by ek hornbeck)

As Dick and George slithered out of DC, a number of lawsuits that were filed by victims of their criminal acts involving FISA, torture and rendition have now been inherited by President Obama.  Bush routinely dismissed these cases by claiming his version of state secrets privilege on unilateral steroids.  The megamedia have reported that the Obama Justice Dept. has indicated in pleadings that it will also invoke the state secrets privilege.  However, there is an alternative which could protect legitimate governmental prerogatives, a victim’s right of redress for harms perpetrated by government officials and society’s right for a transparent government that sustains the rule of law.  The alternative is for Obama to adopt the state secrets standards that govern criminal prosecutions as his guidelines for use in civil litigation until Congress adopts the State Secrets Protection Act that was defeated last year amidst Bush’s veto threats. These guidelines are consistent with Supreme Court precedent that has rarely been correctly utilized.

Bush has used the state secrets privilege as immunity from our rule of law by unilaterally dismissing lawsuits alleging unlawful government conduct.  The list of cases expanded during the Bush years to eliminate claims based on torture, rendition, FISA or warrantless domestic surveillance, misconduct of government employees, presidential records,   employment discrimination, silence of whistleblowers and racial discrimination.   Without the evidence needed to establish the claims, the lawsuits are dismissed even when the claimed secrets were public knowledge.  

The origination of this doctrine is not statute or constitution, but a single Supreme Court case that addressed the state secrets privilege for the “first (and last) time” in United States v. Reynolds (1953). This case involved the deadly crash of a military aircraft on a test flight of “secret” electronic equipment. The widows of civilian engineers sued the US for negligence under federal tort law, and filed a motion to obtain the Air Force’s accident investigation report as evidence.  The Judge Advocate General for the Air Force filed an affidavit stating that it could not disclose the report “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.”

There are two major issues with state secrets privilege:  Who determines whether the government has a valid privilege claim and how to balance a valid privilege claim with the victim’s right of redress.  The Reynolds Court answered these questions, but then was so extremely deferential to the executive branch that it applied its own guidelines in an inconsistent manner.  It is this decision, and the failure of both the courts and Congress to provide guidelines, that provided Bush and his criminal cohorts protection all these years later.

Reynolds correctly determined that, similar to other privileges recognized by our evidence laws, “the court itself must determine whether the circumstances are appropriate for the claim of privilege.” This is key because as the Court recognized, a “complete abandonment of judicial control would lead to intolerable abuses,” and Bush’s unfettered use of this privilege is one prime example of the “caprice of executive officers” that concerned the Court.  The Court warned that the government’s “bare assertion” of the privilege should not conclusively establish the validity of invoking the privilege in a particular case.

However, the Court applied a totality of the circumstances approach that deferred to the government’s affidavit while providing judicial notice to the fact that the nation was in a time of “vigorous preparation for national defense” that could logically require development of electronic devices to enhance our air power that should be kept secret.  

The Reynolds Court did not spend much time addressing balancing of the victim’s right of redress, but indicated that our government should provide alternative measures that the plaintiff could use to obtain the information needed as evidence to prove its case.  The upshot is that cases should not be dismissed as has been the practice.

If the Reynolds Court had taken a peek at the investigative report to see if it contained military secrets, it would have learned, as did our nation in the 1990s when this report was declassified, that the government’s privilege claim was bogus.  The report did not contain a scintilla of state secrets but evidence of the government’s negligence to maintain the aircraft in airworthy condition in a case where the widows alleged negligence as the cause for the crash.  So, the governing law is a case where the court was deferential to an executive branch that misled and lied to the court.

Reynolds is not the only case of unlawful use of the secrets privilege: A “growing body of declassified documents suggests that in the past, at least, the privilege has been used to protect presidential power, not national secrets.”  Over the years, the courts have generally granted the government’s request to keep evidence out of civil litigation.  In fact, a recent study showed that since the 1950s, the government has been “stymied only five times.”  Some courts dismiss cases on the government’s word alone while some read the privileged document, but ultimately defer to the government.   Courts have required in camera inspection of the claimed privileged documents in fewer than 1/3 of the cases.   The problem is there have not been any standards developed to guide the courts in determining whether the government’s claim is valid other than the ambiguous Reynolds case.

In 1980, Congress enacted the Classified Information Protection Act (CIPA) to “provide federal courts with clear statutory guidance on handling secret evidence in criminal cases,” but there is no similar statutory guidance for civil litigation.  CIPA authorizes judges to review classified information that the defendant needs for his defense when the government invokes the privilege.  CIPA “allows the court to delete classified passages, substitute summaries of the information, or substitute a statement of facts that the classified information would prove.”

Last year, Congress wanted to limit the state secrets privilege precisely because Bush used it to prevent “politically embarrassing lawsuits against the government from ever coming before a judge.”  The proposed legislation, the State Secrets Protection Act (SSPA),  sponsored by Senators Kennedy and Specter, would have provided similar clear statutory guidance for courts on handling secret evidence in civil cases so that legitimate secrets would be protected while also permitting civil litigation to exist. By equipping the courts with clear guidelines, this proposed law would clarify that it is the “courts, not the executive branch, [which] must review the evidence and determine whether information is covered by the state secrets privilege.” Thus, the courts would actually be authorized to review the documents or evidence rather than rely on government affidavits that the evidence is too sensitive to even be disclosed to a judge.  Similar to CIPA, the SSPA would authorize judges to “order the government to produce unclassified or redacted versions of the evidence” so that civil litigation could proceed rather than be dismissed.

There are indicators that President Obama will not continue the Bush version of state secrets privilege that squashes redress of the substantive issue in the case.  While Obama did not cosponsor the SSPA, he has opposed FISA immunity and torture while supporting governmental transparency and the rule of law doctrine. And,  while I was coding this diary, Meteor Blades informed me that AG Holder plans to minimize the use of this privilege when he reviews current litigation inherited from Bush.

That is change in the right direction. I hope Holder not only minimizes its use but also allows the courts to be the decisionmaker on whether the privilege is validly invoked and provides the plaintiffs with alternative avenues for the needed evidence.


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  1. it’s great that Holder will minimize invoking state secrets privilege, but when he does invoke, i’d like to know the court will decide if invocation is valid and that there will be an alternative mechanism to provide information to plaintiff so that case is not dismissed for lack of evidence.

    also posted at GOS


  2. I echo Valtin’s comment!

  3. there will be briefs filed this week and next by obama team so it will be interesting to see what arguments they make, whether they rely on state secrets privilege or governmental immunity to ditch these cases or are willing to allow plaintiffs in these lawsuits to have their day in court to hold bush officials civilly liable, and in some cases, financially liable beyond nominal damages!

    • kj on February 4, 2009 at 03:41

    wow, what radical ideas.   here’s hoping we as a people are up for this.

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