State Secrets Privilege Prevents Justice Again

Yet again, a federal court dismissed a lawsuit against the federal government under the ‘state secrets’ privilege, despite substantial public evidence that the plaintiff’s constitutional rights had been violated. In Fagaza v. FBI, Muslim community members alleged their First and Fourth Amendment rights were repeatedly violated by the FBI and its informant, who eventually turned on the FBI and cooperated with the plaintiffs.

A week before the judge’s ruling, NPR’s This American Life dedicated its August 10th program to the case, which you can listen to here.

The ‘state secrets’ privilege is a narrow tool designed to prevent military secrets from disclosure in litigation. However, the government has increasingly asserted the privilege in broader and more varied contexts over the last decade to have entire lawsuits dismissed without ever addressing the merits of the suit. The government essentially argues that, in order to litigate certain suits, information would have to be disclosed that could damage national security, and the suits should therefore be dismissed. Unfortunately, many judges have acquiesced—even when it seems clear no real secrets would be revealed.

The judge in this case even acknowledged the state secrets privilege was preventing individuals from challenging legitimate constitutional violations, saying “the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”

However, as ACLU attorney Ahilan Arulanantham told the Los Angeles Times, the ruling is “contrary to the basic notion that the judiciary determines what the law is and holds the government to it. We’re exempting huge swaths of government activity to judicial oversight.”

Guantanamo and Auto-Censorship

A court hearing originally scheduled for this week involving heavy-handed government secrecy at Guantanamo has been delayed, but the topic of the hearing is important to highlight: The government has contended that they can classify everything Guantanamo detainees say—even before they say it. As Cheryl Bormann, a lawyer for one of the detainees complained, "Everything is presumptively top secret. So if my client had a tuna fish sandwich for lunch, I couldn't tell you that."

As Reuters reported, “The defendants' words are…‘born classified,’ a status their lawyers said has previously been used only to safeguard details about nuclear weapons.” Most critically this policy means that reporters are barred from hearing any sort of testimony about alleged torture at the hands of the CIA.

Reporters hear all the testimony at the military tribunals on forty-second delay, and if a detainee mentions torture, officials hit a white noise button to censor the testimony. The government claims the testimony “must be strictly monitored precisely because of the defendants' intimate personal knowledge of highly classified CIA interrogation methods they endured in the agency's clandestine overseas prisons.” However, President Obama has disavowed torture, and the methods of approved “enhanced interrogation,” the Bush administration’s euphemism for torture, have been public for years.

ACLU and several media organizations have challenged the policy and the hearing was supposed to be held this week. It was delayed until October, however, due to Hurricane Isaac.

10 Questions on Transparency for Candidates for Elected Office

Unfortunately this campaign season, the only time the presidential candidates have debated government transparency, it was to argue over who would be more secretive in the context of national security and leaks to the press. But OpenGovernment.org, along with POGO and ASNE, have just released ten important questions for candidates to answer concerning transparency, openness, and press freedom during this Fall’s campaign season.

In an effort to make unnecessary government secrecy a campaign issue, the groups ask that if you see a candidate at a campaign stop, ask them one or more of the questions. Questions include, “How will you make sure reporters and publishers can pursue critical stories without risk of subpoenas, prosecutions, or intimidation” and “Do you believe there is too much government secrecy, and if so, how will you fix it?”

White House Beer FOIA’d

In what has been dubbed “the best beer related FOIA ever” a Reddit user has submitted a FOIA request for the White House’s secret homebrew beer recipe.

President Obama has generated buzz the last few weeks by showing off the White House’s unique microbrew at campaign stops for re-election. After a White House petition was set up asking for the recipe and another Reddit user emailed the White House for its release, an official FOIA request was sent in.

Unfortunately, the request may not be going anywhere, as the White House has argued in court it is exempt from FOIA requests. EFF disagrees and has argued the Office of Administration is within the bounds of an “agency” as defined under FOIA. Either way, White House spokesman Jay Carney said there’s no immediate plans to release the recipe.

Score another one for unnecessary government secrecy.