SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 8
January 25, 2005

US ASSERTS STATE SECRETS PRIVILEGE AGAIN

The Department of Justice last week formally asserted the state secrets privilege in seeking to dismiss a lawsuit brought by Maher Arar, a Syrian-Canadian who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later.

The state secrets privilege was invoked "in order to protect the intelligence, foreign policy and national security interests of the United States," wrote Acting Attorney General James B. Comey in a January 18 declaration in the lawsuit Maher Arar v. John Ashcroft in the Eastern District of New York.

"Litigating... plaintiff's complaint would necessitate disclosure of classified information," Mr. Comey wrote, including disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.

Tom Ridge, Secretary of Homeland Security, concurred in another sworn declaration submitted to the court. See both declarations here:

"The state secrets privilege is an absolute bar to civil litigation that would require disclosure of protected information," the Justice Department wrote in an accompanying memorandum.

See "Memorandum in Support of the United States' Assertion of States Secrets Privilege," January 18, 2005:

"Use of the state secrets privilege in courts has grown significantly over the last twenty-five years," wrote William G. Weaver and Robert M. Pallitto of the University of Texas at El Paso in a forthcoming study. And "recent cases indicate that Bush administration lawyers are using the privilege with offhanded abandon."

Whatever its intent or justification, the consequence of increased reliance on the state secrets privilege is to curtail judicial review of controversial government activities in an area where oversight is already lacking or ineffective.

The state secrets privilege was invoked last year to block the lawsuit of FBI whistleblower Sibel Edmonds (SN, 05/18/04). That matter will be heard on appeal in the DC Circuit Court in April.

Maher Arar is represented by the Center for Constitutional Rights (www.ccr-ny.org).

PROLIFERATION SECURITY INITIATIVE

The Bush Administration's Proliferation Security Initiative (PSI) is a rather bold counterproliferation effort that seeks to promote international cooperation to stem global traffic in weapons of mass destruction-related materials. It functions not simply through enforcement of existing controls but also, and more controversially, through the interdiction of illicit commerce.

The purposes and limitations of the PSI are summarized in a new report from the Congressional Research Service, "Proliferation Security Initiative," January 14, 2005:

A State Department Fact Sheet on the Proliferation Security Initiative, newly updated on January 11, 2005, is here:

More detailed background is provided in "Overcoming Challenges to the Proliferation Security Initiative" by Herbert N. Warden IV, a masters thesis prepared at the Naval Postgraduate School, September 2004:

SOME MORE CRS PRODUCTS

Some new or newly updated reports from the Congressional Research Service obtained by Secrecy News include the following.

"Border Security: Fences Along the U.S. International Border," January 13, 2005:

"Terrorism and Security Issues Facing the Water Infrastructure Sector," updated January 5, 2005:

"Urban Search and Rescue Task Forces: Facts and Issues," updated January 10, 2005:

"Capital Punishment: An Overview of Federal Death Penalty Statutes," updated January 5, 2005:

"Security Classification Policy and Procedure: E.O. 12958, as Amended," updated January 7, 2005:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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