JURIST - Paper Chase: Holder orders DOJ review of US state secret assertions

[JURIST] US Attorney General Eric Holder [official profile] on Monday ordered a review of all government claims invoking the state secrets privilege [JURIST news archive]. A spokesperson for the Department of Justice (DOJ) [official website] said that each state secrets claim will be reviewed to make sure the privilege was invoked only in lawful situations. Holder's announcement came on the same day that the DOJ invoked the state secrets privilege before the US Court of Appeals for the Ninth Circuit [official website] in Mohamed v. Jeppesen, where the plaintiffs are suing a Boeing [corporate website] subsidiary for its alleged role in the US extraordinary rendition [JURIST news archive; JURIST Forum] program. The Bush administration previously intervened in the case, asserting the state secrets privilege. During Monday's oral arguments, the DOJ chose not to change the government's position. The American Civil Liberties Union (ACLU) and the Constitution Project [press releases] have expressed disappointment with the DOJ's decision. ACLU staff attorney Ben Wizner said:

We are shocked and deeply disappointed that the Justice Department has chosen to continue the Bush administration's practice of dodging judicial scrutiny of extraordinary rendition and torture. This was an opportunity for the new administration to act on its condemnation of torture and rendition, but instead it has chosen to stay the course. Now we must hope that the court will assert its independence by rejecting the government's false claims of state secrets and allowing the victims of torture and rendition their day in court.

The state secrets privilege was regularly invoked by the Bush administration to block lawsuits over controversial anti-terrorism programs, including warrantless surveillance [JURIST news archive]. In September, a secrecy "report card" [text, PDF; JURIST report] released by OpenTheGovernment.org [advocacy website] revealed that the Bush administration invoked the state secrets privilege "45 times — an average of 6.4 times per year in 7 years (through 2007) — more than double the average (2.46) in the previous 24 years."

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