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Invoking 'State Secrets': Still the Status Quo?

Earlier this week, we flagged an interesting piece in the New York Times about the U.S. government invoking the state secrets privilege to block evidence in lawsuits against a contractor who had duped the U.S. government into spending millions on what many now consider to be fake counterterrorism technology.

According to another recent report, the U.S. invoked state secrets to block a personal injury lawsuit by a CIA employee who alleged that environmental contamination in his home made his family sick. That got us wondering about what else the U.S. has invoked state secrets for—particularly under the Obama administration, which had pledged to end abuses of the privilege.

"Numbers aside, there is a great deal of continuity between the Bush and Obama administrations,” Steven Aftergood, a government secrecy expert with the Federation of American Scientists, told us. “And there is no case where the Obama administration has rescinded a claim of state secrets privilege that was advanced by the Bush [administration]."

Here’s a quick review of some of them:

To block a lawsuit seeking to prevent the U.S. government from killing Anwar Al-Awlaki, an American citizen accused of having ties to al-Qaeda. The Times noted that while the U.S. government did not confirm that Awlaki was on its “targeted killings” list, it invoked the state secrets privilege, arguing that the case “cannot be litigated without risking or requiring the disclosure of classified and privileged intelligence information that must not be disclosed.”

To block evidence in lawsuits against government contractors involved in the government’s extraordinary rendition program. Months after President Obama took office, his Justice Department surprised federal judges by invoking the state secrets privilege again in a case filed by five detainees who said they were abducted and flown to other countries—where they allege they were tortured—on flights arranged by a Boeing subsidiary.

To block lawsuits over the Bush administration’s domestic wiretapping program. In one case inherited from the Bush administration, Obama’s Justice Department continued to argue that classified records of eavesdropping on an Islamic charity were state secrets. That evidence was excluded, and the case was allowed to proceed. Wired magazine noted that the two wiretapped lawyers were awarded $20,400 each, a ruling that last week the Obama administration indicated it would appeal.

In another case, Attorney General Eric Holder said the department “specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so.” As a candidate, Barack Obama had previously called the surveillance program “unconstitutional and illegal.”

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