Facing a wave of litigation challenging its eavesdropping at home and its handling of terror suspects abroad, the administration of US President George W. Bush 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 academics 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 Bush than under any of his predecessors 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 said.
"This is a very powerful weapon for the executive branch," Weaver said. "Once it's asserted, in almost every instance it stops the case cold."
Robert Chesney, a law professor at Wake Forest University who is studying the recent use of the privilege, said the administration's legal strategy "raises profound legal and policy questions that will be the subject of intense debate for the foreseeable future."
Some members of Congress also have doubts about the way the privilege has been used. A bill approved by the House Government Reform Committee would limit its use in blocking whistle-blowers' lawsuits.
"If the very people you're suing are the ones who get to use the state secrets privilege, it's a stacked deck," said Republican Representative Christopher Shays who proposed the measure and has campaigned against excessive government secrecy.
Yet courts have almost always deferred to the secrecy claims; Weaver said he believed that the last unsuccessful assertion of the privilege was in 1993.
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.
Such cases can make for oddities. Mark Zaid, who represented Edmonds and Sterling said he had seen his legal briefs classified by the government and had been barred from contacting a client because his telephone line was not secure.
"In most state secrets cases, the plaintiffs' lawyers don't know what the alleged secrets are," Zaid said.
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