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State Secrets Often Cited to Crush Suits

Posted Aug 31, 2007 10:54 AM CDT
By Debra Cassens Weiss

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The Bush administration is apparently relying on the state secrets privilege in a motion seeking dismissal of a lawsuit claiming a Belgian banking cooperative gave customers’ records to the United States without a warrant.

The Justice Department says in a July 25 motion that the suit should be dismissed to preserve a program that battles terrorism financing and to “minimize the likelihood that highly classified information will be threatened,” the New York Times reports.

The consortium transfers trillions of dollars each day among financial institutions.

The motion asks a federal judge in Alexandria, Va., to reconsider a ruling by Judge James Holderman of Chicago permitting the Fourth Amendment suit to proceed. Holderman agreed to transfer the case to the Virginia court because the consortium, named Swift, has offices in Manassas.

Chicago lawyer Steven E. Schwarz, who represents the plaintiffs, calls the financial disclosure program “an Orwellian example of government overreaching and unfettered access to private financial information that is not consistent with the values upon which our country was founded.”

The administration is relying on the state secrets privilege more often. A report to be released Saturday by OpenTheGovernment.org says the privilege has been used 39 times in the last six years, compared with 59 times in 24 prior years.

Schwarz says frequent use of the privilege has caused a change in judicial attitudes. “We’ve seen a real erosion of the state secrets privilege in the last year,” he told the Times. “I think it is from overuse. We’ve seen it used in record numbers, in situations where it was inappropriate, and the courts are starting to recognize that.”

The administration cited the privilege in pending California litigation against Verizon Communications and other telecommunications companies accused of turning over customer records to terrorism investigators.

But lawyers for Verizon consumers argued yesterday that recent public comments by National Intelligence Director Mike McConnell undermine claims that disclosing information about the program would harm national security, the Associated Press reports.

McConnell told the El Paso Times that private companies assisted with the government’s warrantless surveillance program and said they deserved immunity for their cooperation.

U.S. District Court Judge Vaughn Walker of San Francisco is likely to delay a ruling in the Verizon case until the 9th U.S. Circuit Court of Appeals rules in two similar cases.

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