| "state secrets privilege" -- an executive power handed down from the English throne under common law that lets the government effectively kill civil lawsuits deemed a threat to national security, even if the state is not a party to the suit.
The ruling is notable as a rare appellate interpretation of the state secrets privilege as it applies to patent holders. As such, it is a potentially worrying development for inventors -- particularly those developing weapons, surveillance and anti-terror technologies for government contractors -- who may find infringement claims dismissed without a hearing under the auspices of national security. It also offers a fascinating, if limited, view into the machinery of official secrecy at a time when the privilege is being exercised as never before.
Never passed by Congress, the privilege has its roots in English common law and was cemented into American jurisprudence by a landmark 1953 Supreme Court case titled U.S. v. Reynolds. In Reynolds, the widows of three men who died in a mysterious Air Force crash sued the government, and U.S. officials tried to quash the lawsuit by claiming that they couldn't release any information about the accident without endangering national security. The Supreme Court upheld the claim, establishing a legal precedent that today allows the executive branch to block the release of information in any civil suit -- even if the government isn't the one being sued.
According to research by Weaver, an associate professor of political science at the University of Texas, the government invoked the privilege only four more times in the next 23 years. But following the Watergate scandal, the executive branch began applying state secrecy claims more liberally. Between 1977 and 2001, there were at least 51 civil lawsuits in which the government claimed the state secrets privilege -- in every case successfully.
"There was more oversight of presidential activity" after Watergate, says Weaver. "In response to that, I think presidents resorted to the state secrets privilege to keep that oversight from cramping their style."
"The privilege has worked very effectively for the government," says Aftergood. "In almost every case where they've invoked it, it leads to the termination of litigation."
Indeed, the list of cases in which the state secrets privilege has been invoked seems a pantheon of injustice. The privilege was upheld in 1982 to prevent former Vietnam War protestors from learning more about an illegal CIA and NSA electronic surveillance effort that targeted them during the 1970s. In 1991, it was used to stop a lawsuit by a banker who'd unwittingly been roped into an illegal CIA money-laundering operation, and who claimed the agency had ruined his career when he tried to get out.
In 1998, workers at the Nevada airbase known colloquially as Area 51 were blocked from learning what chemicals they'd been exposed to during illegal burning of toxic waste by base administrators.
In 2004, the Bush administration resorted to the privilege to silence former FBI translator Sibel Edmonds, who said she was fired from the bureau after reporting security breaches and misconduct in the agency's translation program. And in perhaps the most disturbing case, this year the Justice Department asserted the privilege to kill a lawsuit by Maher Arar, a Syrian-born Canadian citizen who, in 2002, was picked up by U.S. officials as a suspected terrorist while changing planes at JFK, and promptly shipped off to Syria for a year of imprisonment and torture.
"Here's a guy who was a victim of a crime, that is, kidnapping, who was sent by us to a foreign country to be tortured to get information for us," says Weaver. "That violates all kinds of laws and the Convention Against Torture and who knows what else."
Weaver says the state secrets privilege is a blunt instrument that too often utterly obliterates any further inquiry by the plaintiffs in a civil case. "I'm not saying it's always invoked for evil purposes -- it almost certainly is not. But we can't tell when it is, and that's the problem." He faults Jimmy Carter for being the first president to use the privilege with frequency, and George W. Bush for using it systematically. "This presidency is the first one in history to use the secrecy privilege in a programmatic, organized comprehensive policy," Weaver says. "It's the first secrecy presidency."
"It effectively shuts down the judicial process," says Aftergood. "It tells people that they cannot have their day in court because national security will not permit it, and that's a terrible message to send." | |
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