Intellectual Property Law

The Justice Department said Monday it is reviewing litigation inherited from the Bush administration in which the so-called state-secrets privilege was invoked.

But it remains to be seen whether the Obama administration would cite the privilege less frequently than the record number of times it was invoked under George W. Bush. President Barack Obama's Justice Department on Monday was defending the privilege invoked by the Bush administration, in a bid to scuttle a lawsuit brought by four U.S. prisoners who claim they were kidnapped, taken overseas and tortured.

"The attorney general has directed that senior Justice Department officials review all assertions of state secrets to ensure it is being invoked in only legally appropriate situations," Justice Department spokesman Matt Miller said in a telephone interview.

The state-secrets defense was first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Generally, lawsuits in which national-security information may be divulged are usually tossed by judges, at the request of the government, in the name of national security.

The Bush administration invoked the privilege at least 39 times, whereas all U.S. presidents have invoked it roughly 55 times combined. William Weaver, a University of Texas, El Paso political scientist has said the privilege was cited six times between 1953 and 1976, at the height of the Cold War between the Soviet Union and United States.

The new administration's position on the matter will come under the microscope again on Friday, when it submits briefs on an eavesdropping case in which the Bush administration cited the state-secrets privilege. That case concerns two lawyers for a defunct Saudi charity who claim their telephone conversations were illegally recorded by the government.

Two days after Obama was inaugurated, the government filed briefs in the case supporting his predecessor's position, a move many believed or hoped was not representative of the new president's position.

The privilege became well-known to the public when the Bush administration cited it two years ago in a bid to dismiss the Electronic Frontier Foundation's lawsuit accusing the nation's telecoms of funneling Americans' electronic communications to the National Security Agency without warrants. In a rare move, a federal judge refused to dismiss the case based on the privilege. The government appealed.

The appeal was mooted after Congress, including then-Sen. Obama, voted last year to immunize the telcos from lawsuits accusing them of violating the privacy of millions of Americans.  U.S. District Judge Vaughn Walker of San Francisco is entertaining a legal challenge to the immunity legislation. Holder, during his confirmation hearings, said the Obama administration would defend the legislation.

While declining to comment on any case in particular, spokesman Miller said the Obama administration would not cite the state-secrets privilege "to hide from the American people information that they have a right to know."

However, Miller said, the privilege would be invoked if necessary.

"It's vital that we protect information that, if released, that could jeopardize national security," he said.

Photo: Associated Press

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