Groups Question Use of State Secret Privilege to Block Private Lawsuit

Several civil society organizations have joined The Constitution Project in asking a federal judge to require the Department of Justice to explain why it wants to shut down a lawsuit between two private parties.  The groups filed a “friend of the court” brief on October 31, questioning the broad assertion of the state secrets privilege in a defamation lawsuit brought by a Greek businessman against United Against Nuclear Iran, an advocacy group that pushes for tough sanctions against Tehran.

“Never before has the government sought dismissal of a suit between private parties on state secrets grounds without providing the parties and the public any information about the government’s interest in the case” the groups wrote in their brief.   They called on the court to determine “whether the government has properly asserted the privilege in this matter—including by requiring meaningful adversarial testing of the government’s claim of privilege.”

As explained in the brief, the state secrets privilege is a legal doctrine that should be applied only in the narrowest of circumstances to block the release of information in a lawsuit that, if publicly disclosed, would harm national security.  Under both the George W. Bush and Obama administrations, however, the government has increasingly used the state secrets privilege not only to shield particular information from disclosure, but to keep entire cases out of court.  This report from the Liberty and Security Committee offers more detailed information on the use and abuse of the privilege.

Typically, an assertion of the state secrets privilege is accompanied by a sworn public statement from a senior official to help explain the government’s interest.  Clearly, the privilege should not be invoked to evade accountability or to cover up embarrassing facts.  In this instance, however, the Department of Justice claimed even a circumspect disclosure of the government’s interest, such as identifying the agency affected or the bases for the demand, would itself jeopardize national security, leaving the public completely in the dark.

The case is Restis v United Against Nuclear Iran.  Other groups that joined TCP in filing the brief are the ACLU, the Brennan Center for Justice, the Center for Constitutional Rights, the Electronic Frontier Foundation, and the Sunlight Foundation.

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