Human Rights USA Urges President-elect Obama to Keep His Promise to Put an End to Torture

In response to recent news reports indicating that the Obama administration will abandon any prospect of initiating criminal investigations and prosecutions into detainee abuse and torture, Human Rights USA, in partnership with the Torture Abolition Support and Survivors' Coalition (TASSC) and the Society of American Law Teachers (SALT), as well as nearly twenty other human rights advocates and organizations, is asking the next administration to keep the option of criminal investigations and prosecutions on the table.

As the President-elect continues to appoint candidates for top-level cabinet posts and finalize his policy goals, Human Rights USA and other human rights advocates ask him to keep his promise to putting an end to torture by the United States Government. In order to demonstrate his commitment to ending torture, President-elect Obama must make it clear that America will not tolerate impunity for torture.

The groups have asked President-elect Obama, when the time comes, to direct his Attorney General to appoint independent counsel to investigate and, where warranted, prosecute top officials responsible for approving or directing the use of torture and other forms of unlawful treatment against detainees during the "war on terror."

Human Rights USA, in collaboration with TASSC, has been drafting a criminal complaint to support its request for criminal investigations and prosecutions (where warranted) of U.S. officials responsible for authorizing or directing detainee abuse and torture. For more information about this project, please contact Colleen Costello at ccostello [at] humanrightsusa.org.

A PDF version of the letter is available here. The full text of the letter follows:

December 2, 2008

The Honorable Barack Obama
President-elect of the United States
1800 F Street NW
Washington, DC 20405
Fax: (202) 228-5417

Presidential Transition Office
Kluczynski Federal Building
230 S. Dearborn Street, 38th Floor
Chicago, IL 60604

Re: Accountability for Torture and Other Violations
of U.S. and International Law

Dear President-elect Obama:

Congratulations on your historic election to become the 44th President of the United States. Americans have expressed their overwhelming confidence in your ability to lead our country to realizing its full potential.

We write to you today as human rights advocates to express our appreciation for your long-standing commitment to human and civil rights. From the beginning of your campaign, you have said that one of your main priorities as President will be to restore America’s moral stature in the world. Americans’ faith in its leaders was shaken by the United States Government’s response to the terror attacks of September 11th. The irresponsible policies of the past seven years have diminished the United States’ reputation as a world leader in advancing and protecting human rights. Our country went from being a beacon of liberty to a leading purveyor of torture.

With the prospect of a new administration, guided by your leadership, Americans are hopeful that things will change – for the better. We believe that under your administration, the rule of law will receive the respect it deserves. Recently, you renewed your pledge to close the Guantánamo Bay detention facility, which is a significant – and commendable – first step in renewing our nation’s commitment to its human rights obligations. As you said, following the passage of the Military Commissions Act of 2006, fundamental human rights should be bigger than politics.

We agree.

But, President-elect Obama, we are concerned by recent news reports that seem to indicate that politics may yet trump human rights under your administration. In an article published by the Associated Press on Tuesday, November 18th, two of your advisers, who asked to remain anonymous, reported that there is “little – if any – chance that [your] Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”[1]

Following the nomination of Alberto Gonzales for Attorney General, you asked, “[h]ow, if we are willing to rationalize torture through legalisms and semantics, can we claim to our children, and the children of the world, that America is different, and represents a higher moral standard?” Let us put this question another way: How, if we are willing to allow people – representatives of our government, at that – to torture with impunity, can we claim to future generations that America is different, and represents a higher moral standard?

If Our Goal is to End Torture, Here is What We Need to Do

You have said, throughout your campaign and in the weeks after your election, that putting an end to torture was among your priorities for your administration. The policies pursued by our government over the past several years have set a dangerous precedent that is likely to be repeated by future administrations – unless we set a minimum standard that puts future generations on notice that this country does not, and will not, tolerate impunity for torturers.

We are asking for you, and for other members of your new administration, to take your commitment to protecting human rights one step further: please put “justice” back in the Justice Department. We are not asking you to make a formal commitment to prosecutions of specific individuals. We are asking you, at this point in time, to keep the option of criminal investigations and prosecutions on the table.

When the time comes, direct your Attorney General to appoint independent counsel to initiate an investigation into criminal wrongdoing by government officials related to detainee abuse and torture. Ensure that the independent counsel receives the authority and resources he or she needs to properly and thoroughly conduct the investigation. And if the independent counsel does find any evidence of criminal wrongdoing, ensure that the Attorney General grants him or her sufficient power to prosecute officials who have violated not only the laws of the United States, but also the trust of the American people.

In your speech on the night of November 4th, you called on all Americans to make the change they wish to see. For the past several months, Human Rights USA, in collaboration with TASSC International, has been drafting a criminal complaint in support of our request for criminal investigations and, where warranted, prosecutions of U.S. officials responsible for authorizing or directing detainee abuse and torture. We are not alone in this request for accountability.[2]

We understand that you cannot do it alone. But understand that the decision to initiate investigations, and the decision to hold accountable those individuals who have done so much damage to our nation and to the individuals who were abused, tortured, and killed, must come from you.

President-elect Obama, you were correct in saying that there is no challenge too great that America cannot overcome. We see the promise that the future holds for this country, and, like you, we want to be the generation that makes future generations proud of what we did.

Sincerely,

Organizations

World Organization for Human Rights USA
Theresa Harris, Executive Director
Washington, DC

Torture Abolition Support and Survivors’ Coalition International (TASSC)
Demissie Abebe Gebremedhin, Executive Director
Washington, DC

Backbone Campaign
Bill Moyer, Executive Director
Vashon, WA

CODEPINK
Gael Murphy, Cofounder

National Economic and Social Rights Initiative (NESRI)
Cathy Albisa, Executive Director
New York, NY

Society of American Law Teachers (SALT)
Hazel Weiser, Executive Director
Central Islip, NY

U.S. Labor Against the War (USLAW)
Michael Eisenscher, National Coordinator
Washington, DC

Voces de la Frontera: Workers' Center
Christine Neumann-Ortiz, Executive Director
Milwaukee, WI

Individuals*

Sandra Babcock
Associate Clinical Professor
Center for International Human Rights
Northwestern Law School

John Bonifaz
Constitutional Attorney

Deborah Buffton
La Crosse, Wisconsin

Catherine M. Grosso
Assistant Professor of Law
Michigan State University College of Law

Rogelio A. Lasso
Professor
The John Marshall Law School

Nathan J. Miller
Human Rights Program Officer
International Senior Lawyers Project

Jordan J. Paust
Mike and Teresa Baker Law Center Professor
University of Houston Law Center

Michael Ratner
President
Center for Constitutional Rights

Cindy Sheehan
Gold Star Mother and Human Rights' Activist

David Swanson
Co-Founder
After Downing Street

Dean Lawrence R. Velvel

*The individual signatories to this letter have signed on in their individual capacity. Institutional affiliations are listed for information and identification
purposes only.

[1] Lara Jakes Jordan, Associated Press Writer, Obama advisers: No charges likely vs. interrogators, Associated Press, Nov. 18, 2008, available at http://hosted.ap.org/dynamic/stories/O/OBAMA_INTERROGATORS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2008-11-18-00-21-27.
[2] American Civil Liberties Union, Actions for Restoring America, Oct. 20, 2008, at 2, available at http://72.3.233.244/images/asset_upload_file45_37256.pdf; Physicians for Human Rights, Broken Laws, Broken Lives, June 2008, at 10, available at http://brokenlives.info/?page_id=69; Amnesty International, Counter Terror With Justice: A Checklist for the Next U.S. President, Nov. 5, 2008, at 2, available at http://www.amnesty.org/en/library/asset/AMR51/117/2008/en/f5aa6a76-a5db-11dd-98b9-d503e38a5523/amr511172008en.pdf; University of California, Berkeley, Human Rights Center and International Human Rights Law Clinic, Guantanamo and Its Aftermath: U.S. Detention and Interrogation Practices and Their Impact on Former Detainees, November 2008, p. 80, available at http://hrc.berkeley.edu/pdfs/Gtmo-Aftermath.pdf; Seymour M. Hersh, The New Yorker, The General’s Report, June 25, 2007, available at http://www.newyorker.com/reporting/2007/06/25/070625fa_fact_hersh?printable=trueAmerican (statement by Ret. General Antonio Tabuba, who headed an investigation into detainee abuse at Abu Ghraib, whose findings were reported in the Taguba Report); Human Rights First, How to End Torture and Cruel Treatment: Blueprint for the Next Administration, Oct. 2008, at 2, available at http://www.humanrightsfirst.org/pdf/etn-end-torture-blueprint.pdf.

"Diplomatic Assurances" and Deportation

Can the Executive branch trump a federal court’s decision to defer an immigrant’s removal by relying on a secret "diplomatic assurance" that the immigrant will not be tortured on his return from a country that is notorious for its use of torture and has violated such assurances in the past? The Court of Appeals for the Third Circuit will have the opportunity to answer this question in the case Khouzam v. Mukasey.

An immigration judge originally halted Mr. Khouzam’s deportation to Egypt after determining that it was more likely than not that he would be tortured if he were to be returned given his previous torture at the hands of Egyptian officials and his religious beliefs. The Department of Homeland Security (DHS) terminated Mr. Khouzam’s deferral and attempted to send him back to Egypt after the State Department obtained a diplomatic assurance from Egypt stating that he would not be tortured. Human Rights USA filed a habeas petition on Mr. Khouzam’s behalf with the United States District Court for the Middle District of Pennsylvania in order to protect Mr. Khouzam’s fundamental right to not be tortured and bring transparency to the diplomatic assurance process.

One might ask why DHS would rely on such an assurance from Egypt, especially since Egypt routinely violates its diplomatic assurances to not torture. But the more important question is, why won’t DHS show the court the diplomatic assurance and discuss how it was obtained. Why do the current regulations allow DHS and State Department officials to ignore an immigration judge’s decision to defer removal?

At the core of the Attorney General’s argument is the belief that immigration judges are not well suited to review diplomatic assurances. It appears that the government has forgotten that immigration judges already review country conditions and expert testimony to decide if it's likely the returned individual will be tortured. It's not a stretch to imagine that a judge would be able to review the process by which the diplomatic assurance was obtained, the monitoring process in the foreign country, and that country's history of respecting diplomatic assurances.

Mr. Khouzam’s attorneys, Lee Gelernt and Amrit Singh, deftly argued that a court should be given a chance to review the diplomatic assurance used to terminate their client’s deferral of removal, and anything less violated his right to due process as well as America’s Convention Against Torture (CAT) obligations. Mr. Gelernt and Ms. Singh offered the Court the narrow position that this particular secret diplomatic assurance was not sufficient to satisfy the government's CAT obligations because of Egypt's history of torturing Mr. Khouzam and violating diplomatic assurances, but noted that the Court could just as easily find diplomatic assurances unacceptable because they were only needed from countries with less-than-spectacular human rights records.

Mr. Khouzam's question before the Court, simply put, is whether the Court should allow the Department of Homeland Security to deport him based on a secret diplomatic assurance from a country that has already tortured Mr. Khouzam and has violated diplomatic assurances in the past. It is undoubtedly an important question that should be answered in the negative. But America's question before the Court is even more critical. Can the Executive get away with promulgating regulations that contradict the intent behind their implementing legislation and fly in the face of judicial decisions protecting fundamental rights? The Court of Appeals for the 3rd Circuit should take this opportunity to answer with a resounding "no".

By Ben Berlin, Human Rights USA Legal Intern

Yoo and Addington Obstruct Congressional Effort to Examine Bush Administration’s Authorization of Torture

In a contentious hearing before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties, last Thursday, two “architects” of the Bush administration’s torture policies refused to yield any information on the authorization of waterboarding and other harsh interrogation techniques. David Addington, Chief of Staff and Former Counsel to Vice-President Cheney, and John Yoo, former Deputy Assistant Attorney General, appeared before the Subcommittee on June 26, the 21^st anniversary of the adoption of the Convention Against Torture. Yoo appeared voluntarily, but a defiant Addington came only under subpoena, without submitting written testimony or offering an opening statement.

Yoo, author of the now infamous “Yoo memos,” which provided the legal analysis that led to the adoption of torture tactics in interrogation of detainees at Guantanamo and elsewhere, deflected the majority of questions from Committee members with the shield of a “professional obligation to the Department of Justice to obey their instructions.” Whatever those instructions may have been, they prevented Yoo from saying anything about his opinions and knowledge of the use of the memos he drafted. Upon the Chairman’s insistence that Yoo either assert a privilege or start answering questions, he claimed attorney-client privilege and the need to protect confidential or sensitive information.

Addington, on the other hand, claimed impaired recollection. When asked about his trips to Guantánamo, after which it is reported that officials started using harsher interrogation techniques, he could not recall whether he had discussed interrogation techniques while there. He also denied having advocated any particular position regarding interrogation techniques, claiming only to have requested Yoo’s legal analysis.

While seemingly futile, the testimony of Yoo and Addington is revealing. U.S. government agencies administered interrogation techniques in reliance on the Yoo memos. Yoo and Addington’s obstructionism and unwillingness to even acknowledge, let alone take responsibility for, the effect of their actions on the types of techniques used further demonstrates a severe lack of accountability within the Bush administration. Torture has been committed in violation of domestic and international law, and one by one, U.S. officials refuse to answer questions from the American people and their representatives. As Chairman Nadler asserted in his opening statement, “that is unacceptable.”

By Danielle Goldstone, Human Rights & Anti-Terrorism Legal Intern at Human Rights USA

Report Documents First-hand, Verifiable Evidence of Ill-treatment and Torture of Detainees Under U.S. Custody

During the past several years, the U.S. government has consistently argued that it does not condone torture and that its treatment of detainees in overseas detention centers, though harsh, is not illegal. At the same time, many top administration officials sought to reexamine the United States' domestic and international legal obligations in order to find a way to justify the use of "harsh interrogation techniques," many of which amount to torture and cruel, inhuman, and degrading treatment, in order to obtain information that they suspected detainees of having.

For example, in August 2002, attorneys for the Justice Department drafted a memorandum in which they purported to “clarify” the definition of torture. In actuality, the authors of the memorandum, John Yoo and Jay S. Bybee, completely redefined torture so that, in order for physical pain to constitute torture, it must “be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Likewise, the infliction of mental pain, in order to amount to torture (as defined by Yoo and Bybee), must " result in significant psychological harm of significant duration, e.g., lasting for months or even years”.

Moreover, Yoo and Bybee wrote that even if interrogation methods do violate the law, they could be justified under certain circumstances, such as when necessity or self-defense require – a proposition that directly contradicts the absolute prohibition of torture under longstanding and universally-accepted human rights standards.

Their memo was later withdrawn by lawyers for the DOJ, but others similar in scope replaced it. Even as evidence continues to mount indicating that such memos formed the basis of unlawful interrogation practices, leading to the abuse and torture of detainees in Abu Ghraib and elsewhere, the administration stuck to its claim that detainees were being treated humanely and in accordance with international law.

The administration’s continued insistence that it does not torture has now suffered yet another blow from a recent report published by Physicians For Human Rights (PHR), which examined former detainees who had been held in U.S.-controlled prisons, and found concrete and irrefutable evidence of the physical and psychological fingerprints of torture.

In the report – Broken Laws, Broken Lives: Medical Evidence of Torture by US Personnel and its Impact – PHR clinicians interviewed 11 former detainees and verified their stories in accordance with U.N. guidelines for assessing physical and psychological evidence of torture. In each case, available evidence corroborated the former detainees' claims. The former detainees were arrested in different locations in Iraq and Afghanistan and held in various prisons whose names are now synonymous with detainee abuse and torture: Abu Ghraib, Guantanamo, Bagram, and other U.S.-run prisons in Iraq and Afghanistan. Despite the fact that former detainees often shared no common language, and were held at different prisons at different times, thus making corroboration among them highly unlikely, if not impossible, their stories shared significant similarities.

The former detainees reported brutal beatings during their arrest and transfer to detention facilities, as well as being severely deprived of basic necessities, lack of sanitation, and assaults upon their person and dignity during their imprisonment, including:

• Being forced to live in urine-soaked detention rooms;
• Being prevented access to clean drinking water, toilets, or clothing;
• Subjected to forced isolation in small, dark rooms for extended periods of time; and
• Non-stop, intense sensory bombardment consisting of bright lights and/or loud music for days at a time, resulting in severe sleep deprivation.

The medical evidence was also consistent with the former detainees’ claims of physical assault and torture, instances of which included:

• Severe beatings;
• Electric shocks; and
• Sodomy with rifles and sticks.

PHR’s evaluation made clear that the former detainees are still suffering from the long-term effects of their ill-treatment. Many former detainees reported: significant persistent and chronic physical pain and functional impairment; severe and disabling depression; difficulty sleeping; hypervigilance; intense anxiety and panic attacks; and diminution of social and work life, resulting in serious difficulties in finding employment and in being able to support their families.

Broken Lives confirms claims of torture and abuse of detainees in U.S. overseas detention facilities using established and accepted investigative methods. The fact that each former detainee who participated in the study reported being subjected to similar methods of abuse strongly suggests that such abuse likely was, and perhaps still is, widespread and systemic.

The conclusions of Broken Lives impeach yet again the administration’s claims that the abuse of detainees in U.S. detention centers has been limited to a few isolated, independent instances caused by “a few bad apples on the night shift.”

By Mustafa Unlu, Human Rights & Anti-Terrorism Legal Intern at Human Rights USA.

Supreme Court rules that Guantanamo detainees have right to habeas corpus

In a remarkable decision issued today, the U.S. Supreme Court ruled that Guantanamo Bay alien detainees have a right to challenge the lawfulness of their detentions in U.S. federal courts. The 5-4 decision was issued in the combined cases of Al Odah v. United States and Boumediene v. Bush.

In its decision, the Court ruled that Congress had not validly suspended habeas corpus. Under Article I, Section 9, Clause 2 of the Constitution, the writ of habeas corpus may only be suspended in times of rebellion or invasion -- neither of which have occurred.

Just as significantly, the Court also ruled that the alternative to habeas corpus that Congress set up in 2005 under the Detainee Treatment Act, which only permits detainees to challenge the lawfulness of their detentions under very restrictive and limited terms, is an inadequate and ineffective alternative to habeas. The DTA, according to the Court, did not provide sufficient legal protections to detainees who sought to challenge their detentions under the DTA scheme.

Detainees had challenged the sufficiency of the DTA process, claiming that, unlike the legal protections afforded under habeas review, the DTA did not grant detainees the right to counsel, the right to meaningfully challenge evidence presented against them, the right to present exculpatory evidence, or the right to secure their release if they were found to not be enemy combatants. The DTA would have also allowed the government to present evidence obtained through coercion or torture.

This means that detainees are not required to abide by the terms set out in the Detainee Treatment Act, but rather, may challenge their detentions in U.S. federal courts via habeas petitions.

A copy of the Court's decision is available here.

DHS Agent Arrested for Raping Green Card Applicant

On March 11, New York prosecutors arrested Isaac R. Baichu, a 46-year old immigration official, after he extorted sex from a young Colombian woman seeking a green card. Three days after her green card interview, Mr. Baichu began making personal phone calls to the young woman's cellphone. Nina Bernstein from the New York Times reports:

He hinted, she said, at his power to derail her life and deport her relatives, alluding to a brush she had with the law before her marriage. He summoned her to a private meeting. And at noon on Dec. 21, in a parked car on Queens Boulevard, he named his price — not realizing that she was recording everything on the cellphone in her purse. “I want sex,” he said on the recording. “One or two times. That’s all. You get your green card. You won’t have to see me anymore.” She reluctantly agreed to a future meeting. But when she tried to leave his car, he demanded oral sex “now,” to “know that you’re serious.” And despite her protests, she said, he got his way.

The victim took the sixteen-minute recording to the police, who arrested and pressed charges against Mr. Baichu on March 11. He has been released on $15,000 bond, and has been suspended with pay by the Department of Homeland Security. The victim still has not received a green card. The Department of Homeland Security regularly receives complaints of employee misconduct, but reports a significant backlog in pending complaints.

Bernstein's article breaking the story illustrated "the vast power of low-level immigration law enforcers, ... a growing desperation on the part of immigrants seeking legal status ... [and] the difficulty and danger of making a complaint, even in the rare case when abuse of power may have been caught on tape."

Human Rights USA's Refugee Project Director called the case "just one example of the failings of a poorly managed agency that operates under a statutory and regulatory scheme that fosters impunity and places non-citizens in a position of acute vulnerability to abuse."

Please go here for more information on this case.

Human Rights USA Pays Tribute to Rep. Tom Lantos

Human Rights USA pays tribute to Rep. Tom Lantos (D-CA), who died of esophageal cancer on Monday, February 11, 2008. Lantos, a Holocaust survivor who twice escaped from forced labor prison camps, was one of Congress’s most outspoken advocates for the protection of human and civil rights.

Led by strong moral convictions and an unwavering devotion to justice, Lantos reached across the political aisle to inspire bipartisan cooperation on human rights issues. As Chairman of the House Foreign Affairs Committee, Lantos teamed up with Rep. Chris Smith (R-NJ) in his relentless pursuit of justice for two of Human Rights USA’s clients, Chinese free speech advocates Shi Tao and Wang Xiaoning, who are imprisoned as a result of the cooperation between U.S. internet giant Yahoo! and the Chinese government.

At a hearing on November 6, 2007, Lantos and Smith sharply questioned Yahoo! CEO Jerry Yang for his company’s role in the arrest, imprisonment, and torture of Shi Tao and Wang Xiaoning. Lantos urged Yang to apologize to the detainees, and to “beg forgiveness” from the detainees’ families, who attended the hearing. Yang turned and bowed, and later acknowledged their responsibility. One week later, Yahoo! and the families settled the Alien Tort Claims Act/Torture Victims Protection Act lawsuit filed by Human Rights USA on behalf of Shi Tao and Wang Xiaoning, and stated its commitment to preventing further abuses of this type.

For the past twenty-four years, Lantos and his wife, Annette, sought to make human rights a more visible issue in Congress by establishing the Congressional Human Rights Caucus (CHRC). The CHRC is designed to bring together members of Congress, Administration officials, and human rights experts to address human rights concerns and to bring them to the forefront of Congress’ work. Through Lantos’ leadership, the group has succeeded in drawing attention to issues concerning the rights of women and children, ethnic genocide, and disappearances, among many others.

Tom Lantos’ leadership, both as a member of Congress and as a loyal friend of the human rights community, will long be remembered.

The State Secrets Protection Act

The state secrets privilege* is a common law privilege typically asserted by the government whenever the introduction of evidence into court would present a threat to national security. It is raised in cases involving a variety of issues, many of which involve fundamental rights and claims of government misconduct.

Traditionally, the state secrets privilege privilege has been asserted by the government in order to avoid being compelled to introduce evidence in court. Lately, however, the government has invoked the privilege seeking to have entire cases dismissed. In many instances, judges have dismissed cases without even reviewing the evidence at issue or determining whether a legal basis exists for privilege. In this way, the state secrets privilege has been perverted, and rather than serving as an evidentiary rule, it has become a justiciability rule -- something far different from its original purpose. The Judicial branch, moreover, has become incapacitated in its responsibility for providing checks and balances on the Executive branch.

In recent years, the state secrets privilege has been asserted by the government in an increasing number of cases. As reported by Senator Kennedy, compared to previous administrations, the Bush administration has invoked the privilege in 25% more cases, and has used the privilege to seek dismissal of lawsuits in 90% more cases.

Many of these recent cases involve challenges to the government's war on terror practices. Since 2002, the state secrets privilege has been invoked in lawsuits involving wireless domestic surveillance (ACLU v. NSA and CCR v. Bush), unlawful surveillance activities by private communications companies (Hepting v. AT&T), and the CIA's extraordinary rendition program (El-Masri v. Tenet and Arar v. Ashcroft), among many others. These lawsuits make all too evident the need for uniform rules outlining the use and disposition of state secrets claims.

In asserting the privilege, the government has sought to dismiss cases outright, without affording the courts an opportunity to determine whether a legal basis even exists for the privilege. Courts, moreover, are being asked to apply the privilege without any legislative guidance or clear case precedent. Legislative action that provides clear rules and promotes uniform application of the privilege is needed to guide courts in determining the merits of cases that present very important issues.

Congress is beginning to take notice of the need for legislative guidance on the judicial application of the state secrets privilege. Today, Senators Ted Kennedy (D-MA) and Arlen Specter (R-PA) introduced the State Secrets Protection Act (SSPA), legislation aimed at reining in the U.S. government's increasingly frequent invocation of the state secrets privilege.

Rules are needed to provide clear standards for courts to use so that they can conduct discovery and examine all of the evidence before determining whether a legal basis for the state secrets privilege exists. Without such rules, courts are likely to dismiss a case or claim based on the state secrets privilege before discovery is even conducted.

In cases where the evidence is determined to be privileged, courts should be able to require the government to provide a substantially equivalent alternative form of unclassified evidence, which solves two problems that frequently arise in state secrets cases: the government could retain sensitive and protected information, and opposing parties would have the opportunity to have their cases be reviewed on the merits.

Federal courts are well-equipped to handle assertions of the state secrets privilege. Judges are already entrusted with the handling of highly sensitive information under a number of federal statutes that permit federal courts to review secret evidence. Courts are competent to conduct in camera review of the evidence before determining its admissibility. In camera review has long been used by the courts to review protected or classified information while still respecting the government's need to limit exposure of such information to the public. There is no reason why this same form of review shouldn't be permitted in reviewing evidence purported to be protected by the state secrets privilege.

Legislative guidance on the courts' applicability of the state secrets privilege is needed to guide courts in applying the state secrets privilege. Not only would clear rules restore the balance between the judicial and political branches, but, just as importantly, they would permit individuals the opportunity to have their claims be fairly addressed in a court of law, thereby ensuring that justice is not denied to injured parties.

*The state secrets privilege is commonly referred to in conjunction with the Supreme Court's articulation of the privilege in U.S. v. Reynolds, 345 U.S. 1 (1953). That case involved a negligence lawsuit filed by three widows whose husbands, employees of an Air Force contractor, had been killed in a plane crash while conducting tests on "secret electronic equipment." In their lawsuit against the government, the widows sought full disclosure of the Air Force's accident report. The government responded by invoking the state secrets privilege, claiming that disclosure of the report would threaten national security. The government refused even to disclose the report in camera.

In ruling for the government, the Supreme Court -- without even looking at the report -- held that the government may invoke the privilege to withhold information, even when such information is vital to the opposing party's case. However, when the accident report was finally declassified and made public in 2000, the report contained not a shred of information pertaining to state secrets. What it did contain, however, was evidence of the government's negligence in failing to maintain the aircraft's airworthiness.