from the FAS Project on Government Secrecy
Volume 2006, Issue No. 60
May 22, 2006

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The state secrets privilege has been invoked by the Bush Administration with greater frequency than ever before in American history in a wide range of lawsuits that the government says would threaten national security if allowed to proceed.

In virtually every case, the use of the privilege leads to dismissal of the lawsuit and forecloses the opportunity for an injured party to seek judicial relief.

Most recently, a lawsuit brought by Khaled El-Masri, a German citizen who alleged that he was kidnapped by the CIA and tortured over a five month period, was dismissed after the CIA invoked the "state secrets" privilege.

The dismissal was not based on a finding that the allegations against the CIA were false.

"It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri's complaint," wrote Judge T.S. Ellis, III in a May 12 order.

In fact, "It is worth noting that ... if El-Masri's allegations are true or essentially true, then all fair-minded people... must also agree that El-Masri has suffered injuries as a result of our country's mistake and deserves a remedy," he wrote in the order dismissing the case.

"Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch," he suggested.

But in this case the executive branch is the alleged perpetrator of the offense, and the legislative branch has no procedures for adjudicating allegations such as El-Masri's, even if it had an interest in doing so. That's what courts are for.

Terrorists can kill people and destroy property. But they cannot undermine the rule of law, or deny injured parties access to the courts. Only the U.S. government can do that.

The state secrets privilege has been invoked lately in a remarkable diversity of lawsuits. See this selection of case files from recent state secrets cases:

Tom Blanton of the National Security Archive reflected on the growing use of the state secrets privilege and how it relates to the larger climate of secrecy in "The lie behind the secrets," Los Angeles Times, May 21:

Recently introduced legislation would "provide protection from frivolous government claims of state secrets," the Project on Government Oversight noted:

Wired News today published documents pertaining to the alleged role of AT&T in NSA warrantless surveillance related to another lawsuit in which the state secrets privilege has been invoked. See:


When workers at the secret Groom Lake ("Area 51") aircraft test facility in Nevada filed a lawsuit in the early 1990s alleging that they had been injured by fumes from open-pit burning of chemical waste associated with stealth aircraft development, the government blocked the lawsuit by insisting that all information regarding the chemical waste was classified.

So it came as a surprise to researcher Stephen I. Schwartz when he discovered that some of this information had been published online by the Air Force in a document cleared for public release.

Specifically, a safety manual intended for emergency responders identifies the "hazardous byproducts of burning wreckage" of an F-117A stealth fighter.

"It's a textbook case of how the government, in this case the Air Force, wields classification rules unevenly and withholds information illegally when its disclosure would prove embarrassing or costly," said Stephen Schwartz, the former publisher of the Bulletin of the Atomic Scientists.

A copy of the document he found, entitled "F-117A Safety Supplement: Aerospace Emergency Rescue and Mishap Response Information," U.S. Air Force Technical Manual, 19 May 2005 (see esp. pages 9-10) is available here (2.3 MB PDF):

The story was reported in "Warnings for emergency responders kept from Area 51 workers" by Keith Rogers, Las Vegas Review-Journal, May 21:

Attorney Jonathan Turley, who represented the Groom Lake workers, told the Review-Journal that as a result of the latest revelations he is "looking at the possibility of renewed litigation related to Area 51."


The Department of Defense budget request for 2007 includes about $30.1 billion in classified or "black" spending, according to a new analysis by the Center for Strategic and Budgetary Assessments.

"In real (inflation-adjusted) terms the $30.1 billion FY 2007 request includes more classified acquisition funding than any other defense budget since FY 1988, near the end of the Cold War, when DoD received $19.7 billion ($29.4 billion in FY 2007 dollars) for these programs," wrote author Steven Kosiak.

See "Classified Funding in the FY 2007 Budget Request" (pdf) from the Center for Strategic and Budgetary Assessments.

The study was reported in "Classified military spending reaches highest level since Cold War" by Drew Brown, Knight-Ridder Newspapers, May 19:


Pressure to adopt "sensitive but unclassified" control markings on information that does not qualify for classification is growing, along with opposition to such controls, among some academic researchers who study terrorism-related topics.

See "Scientific Openness: Should Academics Self-Censor Their Findings on Terrorism?" by Yudhijit Bhattacharjee, Science, May 19:

"The secrecy that has become such a hallmark of the Bush administration did not begin with Sept. 11, as the White House often suggests. It began in the earliest days of January 2001, as the administration was taking shape," according to a National Public Radio account.

See "From the Start, Bush White House Kept Secrets" by Don Gonyea, NPR Weekend Edition, May 21:


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

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