Washington — Facing a wave of litigation challenging its eavesdropping at home and its handling of terror suspects abroad, the Bush administration is increasingly turning to a legal tactic that swiftly torpedoes most lawsuits: the state secrets privilege.
In recent weeks alone, officials have used the privilege to win the dismissal of a lawsuit filed by a German man who was abducted and held in Afghanistan for five months and to ask the courts to throw out three legal challenges to the National Security Agency’s domestic surveillance program.
But civil liberties groups and some scholars say the privilege claim, in which the government says any discussion of a lawsuit’s accusations would endanger national security, has short-circuited judicial scrutiny and public debate of some central controversies of the post-Sept. 11 era.
The privilege has been asserted by the Justice Department more frequently under President Bush than under any of his predecessors — in 19 cases, the same number as during the entire eight-year presidency of Ronald Reagan, the previous record holder, according to a count by William Weaver, a political scientist at the University of Texas at El Paso.
While the privilege, defined by a 1953 Supreme Court ruling, was once used to shield sensitive documents or witnesses from disclosure, it is now often used to try to snuff out lawsuits at their inception, Weaver and other legal specialists say.
“This is a very powerful weapon for the executive branch,” said Weaver, who has a law degree and is a co-author of one of the few scholarly articles examining the privilege. “Once it’s asserted, in almost every instance, it stops the case cold.”
Under Bush, the secrets privilege has been used to block a lawsuit by a translator at the FBI, Sibel Edmonds, who was fired after accusing colleagues of security breaches; to stop a discrimination lawsuit filed by Jeffrey Sterling, a Farsi-speaking, African American officer at the CIA; and to derail a patent claim involving a coupler for fiber-optic cable, evidently to guard technical details of government eavesdropping.
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