Secrecy Power Sinks Patent Case

[julialnyc]

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.
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"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."

Justice Department spokeswoman Cynthia Magnuson says the department generally doesn't comment on how the state secrets privilege is applied. "The only thing I can say is it's applied if appropriate only," she says.
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