By Mandy Simon, ACLU Senior Legislative Communications Associate.
The Senate Judiciary Committee had their weekly "business" meeting today and finally (finally!) got around to marking up the State Secrets Protection Act (S. 2553). The privilege allows the government to guard legitimate national security information during lawsuits. But, from wiretapping to torture, the Bush administration has been misusing the privilege to pull the curtain around its misconduct, effectively stopping litigation in its tracks. The bill being marked up was introduced by committee member Senator Kennedy (D-MA) in an effort to narrow the scope and usage of the state secrets privilege and was passed out of committee by a healthy vote of 11-8. Hopefully we'll see some floor action on this legislation soon so we can begin to knock down the wall of secrecy standing between those who've been wronged by our government and justice.
In other exciting news, the ACLU of Illinois had a fantastic decision in a watch list case that could be the first snowflake in an avalanche that finally buries the administration's bogus claims of state secrets. The case, Rahman v. Chertoff, challenged the repeated, lengthy and abusive stops of Americans at the border. The judge ruled against the Department of Homeland Security and FBI, ordering that both agencies reveal whether the names of those who were repeatedly stopped at the border are included in the Terrorist Screening Database. In an exciting turn, the judge also rejected the administration's state secrets claim. In the decision, Magistrate Judge Sidney Schenkier wrote that "courts may not uncritically accept the government's assertion of the state secrets privilege." With both the courts and Congress moving forward on state secrets reform, there's reason to be optimistic about lifting the veil of secrecy around the White House and its questionable tactics in the "war on terror."
I'd like to take a second here to just point out that something that gets missed in the debate over the state secrets claim is the human cost. The best example of that is the case of a German citizen, Khaled El-Masri. El-Masri was kidnapped by the C.I.A.. He was flown to a prison in Afghanistan, interrogated, beaten, and held without charge or evidence for months. He remained imprisoned for weeks after government officials were notified of his innocence. El-Masri was eventually released, dropped off on a rural Albanian hillside with no explanation. When the ACLU sued George Tenet, the then-head of the C.I.A., on El-Masri's behalf, the government intervened and invoked the state secrets privilege. The case was argued in several courts, eventually making it to the U.S. Supreme Court where it was denied certification and stalled. Unbelievably, for all he suffered, Khaled El-Masri may never get vindication. He will, however, remain the example of what happens when our government is left to its own devices without checks and balances.
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