Since September 11, 2001, the U.S. government has invoked the state secrets privilege, seeking dismissal of lawsuits brought by victims of extraordinary rendition, arbitrary detention, torture and warrantless domestic surveillance at the pleadings stage before any evidence is requested or produced. Many courts have accepted the government’s claims of risk to national security without independently reviewing the alleged state secret itself in order to assess whether the information could be disclosed without undue risk, or whether lawsuits may proceed without reference to the alleged state secret.
This practice perpetuates a culture of impunity and unchecked executive power to hide misconduct behind the cloak of national security. It undermines the right, protected by the Constitution and by international treaties to which the U.S. is a party, to seek and obtain remedies for human rights violations resulting from government misconduct. To address this concern, Human Rights First has voiced support for legislation that would require courts to independently examine the information for which the government asserts a privilege and decide whether disclosure of the information would pose an unreasonable risk to national security and if so, whether the case can proceed without reference to the protected information. In February 2009, Human Rights First sent a letter in support of the House and Senate versions of the State Secret Protection Act.