Today's Article
According to the ABA,
the Bush
Administration may
have abused the
'State Secrets'
privilege 'extensively
since Sept. 11, 2001.'
The American Spark
American Bar Association Works To Reign In Bush Administration

By Cliff Montgomery - Sept. 14th, 2007

In August 2007, the American Bar Association (ABA) passed a legal position which may push Congress to
reign in an abuse of the "State Secrets" privilege by the Bush Administration which, according to the ABA,
"has been used extensively since Sept. 11, 2001."

Such a misuse could only further erode American democratic rights, which have been under constant attack
since George W. Bush assumed the mantle of tyrant in this White House.

We quote from the adopted ABA legislation below:

"The state secrets privilege is a common law evidentiary privilege that shields sensitive national security
information from disclosure in litigation. The government is the only party that can assert the privilege, and
application of the privilege can result in dismissal of civil litigation.

"For this reason, it is critically important that courts act as an independent check on the government when it
asserts the state secrets privilege, and that courts conduct a meaningful review of the evidence that the
government claims must remain secret because it is subject to the privilege.

"This proposed policy is designed to promote that meaningful, independent review. It seeks to protect both the
private litigant’s access to critical evidence, including evidence necessary to obtain redress for constitutional
violations and other wrongful conduct, and critically important national security interests, which if not protected
could put the nation at grave risk.

"The proposed policy does this by urging the Congress to enact legislation requiring procedures and standards
designed to ensure that whenever possible, federal civil cases are not dismissed based solely on the state
secrets privilege, while nonetheless recognizing that in limited circumstances, the privilege will require dismissal.

"The proposed policy relates only to civil cases because the government has typically asserted the state
secrets privilege only in civil litigation, and because the Congress already has enacted legislation balancing the
competing interests concerning disclosure and non-disclosure of classified information in criminal cases. See
18 U.S.C. App. III (2006) (Classified Information Procedures Act).

"The proposed policy borrows concepts and procedures from that legislation but does not address evidentiary
issues in criminal cases, which have unique constitutional concerns that do not arise in civil cases. See infra
section III.B.6.

"In addition, the proposed policy focuses on cases brought by private parties alleging wrongful conduct by the
government or by private parties acting in concert with the government, because that is the type of litigation in
which tension between civil liberties and national security most frequently arises.

"In such cases, the government is either the defendant or an intervenor that asserts the privilege on the side
of a private defendant in a suit between private parties involving sensitive national security information. (As
used in the policy, the term 'defendant' is intended to cover the government in both capacities -- as an original
defendant and as an intervenor-defendant).

"Several provisions of the policy would, however, also apply as well to cases in which the government is the
plaintiff, because it is possible that the government could assert the privilege in that procedural posture as well.

"There is an important opportunity, through this policy, to bring uniformity to a significant issue on which courts
have adopted divergent approaches. Some courts have strictly scrutinized the government’s privilege claims,
while others have been more deferential to the government.

CONCLUSION

"The ABA House of Delegates [has adopted] the proposed policy to encourage meaningful judicial review of
assertions of the state secrets privilege. Absent that review, there is a risk that the government would
effectively judge its own claim that information necessary to prove a plaintiff’s case must be kept secret
because disclosure would harm national defense or diplomatic relations of the United States.

"Adoption of the proposed policy [will] help ensure that the state secrets privilege is applied in a manner that
protects the rights and civil liberties of private parties to the fullest extent possible without compromising
legitimate national security interests."

- Respectfully submitted by Robert E. Stein, Chair-ABA Section of Individual Rights and Responsibilities,
August 2007



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