CCR’s Warren Says State Secrets Privilege Undermines Separation of Powers

Following his participation in a recent panel discussion at an ACS symposium on national security and human rights issues, Vincent Warren, executive director of the Center for Constitutional Rights (CCR) talked with ACSblog about the Bush and Obama administrations’ use of the so-called "state secrets" privilege. The privilege has been invoked by both administrations to dismiss lawsuits challenging national security policy, such as the use of rendition, where terrorism suspects are sent to other countries for interrogation and detention.

Warren said that despite the Obama Justice Department’s recent guidelines on use of the privilege, the executive branch is still using it to keep the judicial branch from hearing cases that raise national security issues. The state secrets privilege, Warren said, “really distorts” the Constitution’s separation of powers principle. The Obama administration “seems to be saying that there is no role for the judiciary” in cases that raise or challenge national security policy, Warren said.

Warren’s comments preceded yesterday’s ruling by the U.S. Court of Appeals for the Second Circuit that dismissed a Canadian man’s challenge to rendition. Maher Arar, represented by CCR, sued the Bush administration alleging that he was sent by American officials to Syria in 2002 where he was detained and tortured. The Second Circuit ruled 7-4 that Arar’s claim must be dismissed because Congress has not authorized such lawsuits.

Chief Judge Dennis G. Jacobs wrote for the majority in Arar v. Ashcroft, “We decline to create, on our own, a new cause of action against officers and employees of the federal government.”

But Judge Guido Calabresi wrote in dissent, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Also writing in dissent, Judge Barrington D. Parker Jr. maintained the majority opinion advanced a cramped view of the separation of powers. “This view of the separation of powers,” he wrote, “which confines the courts to the sidelines, is, in my view, deeply mistaken; it diminishes and distorts the role of the judiciary especially during times of turmoil.”

In a press release about the appeals court’s decision, CCR Senior Staff Attorney Maria LaHood said, “With this decision, we have lost much more than Maher Arar’s case against torture – we have lost the rule of law, the moral high ground, our independent judiciary, and our commitment to the Constitution of the United States.”

Today, an Italian judge took a much different view of prosecuting government officials over national security policy. Judge Oscar Magi, Reuters reported, sentenced 23 former CIA agents, in absentia, to eight years in prison for their involvement in rendition of a Muslim cleric.

Watch Warren’s entire interview with ACSblog below or download a podcast of it here.