DOCSLIB.ORG

End Abuse of the State Secrets Privilege

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
End Abuse of the State Secrets Privilege End Abuse of the State Secrets Privilege April 27, 2009 The Bush Administration and the State Secrets Privilege During its tenure, the Bush administration sought to centralize power in the executive by any means necessary––both legal and extralegal––in order to carry out its policies without oversight by any other branch of government. In the name of the “war on terror,” the Bush administration spied on American citizens, tortured and abused detainees in Iraq, Afghanistan, Guantanamo and CIA “black sites,” overrode Congressional authority to make war, and carried out abuses of human rights around the globe in defiance of US and international law. When Bush’s unconstitutional actions were challenged in court, the administration resorted more than any previous administration to the “state secrets privilege,” in attempts to prevent these challenges from ever being heard by a court of law and to preserve its own impunity for its illegal actions. Unfortunately, the Obama administration has, to date, continued to follow along the path set by the Bush administration in utilizing the “state secrets privilege” to attempt to block judicial oversight of government policies and actions. Instead, the Obama administration, if it is to uphold its commitment to transparency, must reverse dangerous legal positions taken by the Bush administration in cases brought by victims and survivors of government abuses, including torture and extraordinary rendition. The state secrets privilege is a common-law privilege that allows the head of an executive department to refuse to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relations interests if disclosed. It originates in England, where the law allows the king or queen the “Crown Privilege,” which grants a monarch the absolute right to refuse to share information with Parliament or the courts. Furthermore, it comes from a system in which one branch of government, Parliament, that is ultimately not responsible to the courts. Thus, the state secrets privilege itself has a profoundly counter-democratic basis, and from a system that has a distinctly different basis than the U.S. system, which relies on checks and balances and the sharing of power between the courts and the political branches of government. However, the Bush administration’s attempt to expand the state secrets privilege went far beyond what had been recognized as the state secrets privilege. The state secrets privilege, as some courts have recognized it, allows the executive to argue that distinct pieces of evidence should be barred from disclosure to a judge.. However, under the Bush administration, it became a routine mechanism utilized in attempts to block the cases – and silence the voices – of victims of government policies from being heard at all. The Bush administration frequently invoked the privilege in order to dismiss cases altogether, attempting to use the privilege to provide a shield for torture, rendition, and other government abuses and criminal activities, and block embarrassing disclosures. Previous uses of the state secrets privilege by the government have most commonly been at the discovery stage, asking the courts to deny people access to documents or witnesses. However, the Bush administration argued that to even answer a complaint by confirming or denying its allegations would risk the disclosure of secrets that could cause “exceptionally grave damage to the national security.” In doing so, it attempted to disable the courts from being able to check the power of the executive branch. In other words, in addition to relying on the state secrets doctrine to an unprecedented degree, the administration tried to transform it from a narrow evidentiary privilege into something that looks like a doctrine of broad executive immunity, allied to the unitary executive theory propagated by John Yoo and other attorneys at the Bush administration Justice Department’s Office of Legal Counsel. This discredited and profoundly undemocratic theory suggests that the President, as Commander-in-Chief, cannot be bound by Congress or any law, national or international. By invoking the State Secrets privilege in cases involving actions taken by the executive as part of its “war on terror,” (including extraordinary rendition, torture, illegal wiretapping and surveillance, and abuses by government contractors) the Bush Comment [ML 1]: Again, what cases involved military contractors? Jeppesen Administration repeatedly tried to evade judicial review of its conduct. Furthermore, it and Aero Contractors (El Masri) were sought to avoid a judicial ruling on whether there was any legal basis for its expansive alleged to be CIA contractors. There’s no state secret assertion in view of its own power. Caci/Titan/Blackwater. Silencing the Voices of the Victims For example, in the case of Mohamed et al. v. Jeppesen Dataplan, Inc ., Binyam Mohamed, a Guantánamo detainee subject to extraordinary rendition to Morocco and detention in Afghanistan and Pakistan where he suffered horrific torture, the Department of Justice entered the case to assert that the state secrets privilege should prevent the case from being heard. In this case, the assertion of the state secrets privilege meant that the government was seeking to prevent victims of torture from seeking justice from the government contractor that they allege knowingly flew them on illegal extraordinary rendition flights to countries where they would be subject to torture. Undoubtedly, Mohamed’s allegations, including the details of his torture under detention, where he was subject to beatings that resulted in unconsciousness and broken bones, his body, including his genitals, were sliced with a scalpel and hot liquids poured on his wounds, and he was threatened with rape, electrocution and death, are embarrassing for the government and its contractors, particularly if validated in a court of law. However, the state secrets privilege cannot be used merely to prevent accountability for and exposure Comment [ML 2]: Maybe merely isn’t right – but not sure was quite right as of criminal and embarrassing government actions. written. During the Bush administration, human rights lawyers repeatedly challenged the attempts to use the state secrets privilege to cover up abuses of human rights and privacy. In one case, a German citizen, Khaled el-Masri, represented by the American Civil Liberties Union, alleged that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition" to a third country. His suit met a state secrets challenge from Bush administration lawyers – and was dismissed on the grounds he would not be able to make his case except by using "[privileged] evidence that exposes how the CIA organizes, staffs, and supervises its most sensitive intelligence operations." Comment [ML 3]: Do we not want to even mention Arar? Could just say that Bush Administration asserted SSP, like In another key case of a torture victim being met with “state secrets,” the Bush paragraph in prior longer draft. Department of Justice asserted the state secrets privilege in an attempt to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen represented by the Center for Constitutional Rights who was detained in the U.S. in 2002 as he attempted to transfer at John F. Kennedy Airport to his flight home to Canada. He was subject to “extraordinary rendition” to Syria, where he was tortured until his release a year later. A Canadian government commission found after a two-year investigation that Arar had no links to terrorism and awarded him compensation of 10 million dollars and an apology. A federal appeals court panel dismissed Mr. Arar’s U.S. lawsuit in 2008 on the basis that it would interfere with national security and foreign policy, a decision that the dissenting judge found gives federal officials the license to “violate constitutional rights with virtual impunity.” The full appeals court later decided to rehear Mr. Arar’s appeal sua sponte . Argument was heard on December 9, 2008, and Mr. Arar continues to await a decision. In another case, in May 2006, the Justice Department moved to preempt the Center for Constitutional Rights’ (CCR) challenge to illegal warrantless domestic surveillance by invoking the state secrets privilege. Even though the government had already admitted all the main allegations in a case fundamentally about the privacy rights of Americans, the government attempted to assert its own privilege to secrecy in order to block any scrutiny of blatantly unlawful actions. The Bush Administration argued that CCR's case could reveal secrets regarding U.S. national security, and the presiding judge should dismiss it without reviewing the evidence. The Obama Administration to Date It remains for the Obama Administration to re-establish the standards that the Constitution demands. The Department of Justice under Attorney General Eric Holder should retract prior legal positions attempting to use the State Secrets privilege in outstanding cases, in order to block justice for torture survivors and other victims of government lawbreaking, or to shield military contractors, or officials or other government figures from accountability for their unlawful activities. The Department of Justice must reject the use of the state secrets privilege to block cases from the courtroom, disable judicial review, or provide a shield for official lawbreaking. Judges must
Load more

Recommended publications
  • State Secrets Protection Act of 2008 (H.R. 5607)
    WASHINGTON LEGISLATIVE OFFICE 915 15th Street, NW Washington, D.C. 20005 (202) 544-1681 Fax (202) 546-0738 State Secrets Protection Act of 2008 (H.R. 5607) What is the state secrets privilege? The state secrets privilege is a common‐law evidentiary rule that permits the government “to block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security.” (Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983); See also, United States v. Reynolds, 345 U.S. 1, 10 (1953); Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004). What is the problem with the states secrets privilege? Since September 11, 2001, the state secrets privilege has mutated into an alternative form of immunity that is increasingly being used to shield the government and its agents from accountability for systemic violations of the Constitution. In cases challenging the Bush administration’s illegal policies of warrantless surveillance, extraordinary rendition, and torture, for example, the government has asserted the state secrets privilege – not merely to exclude evidence, but as the basis for negating suits in their entirety. The resulting untimely dismissal of important lawsuits has undermined our constitutional system of checks and balances and weakened our national interest in having a government that is accountable to the people. The misuse of the privilege by the executive branch, coupled with the failure of the courts to exercise independent scrutiny over privilege claims, has allowed serious, ongoing abuses of executive power to go unchecked. Because there are currently no statutory standards for the state secrets privilege, there is substantial confusion in the lower courts regarding when the privilege may properly be invoked, and what precisely the privilege may be invoked to protect.
    [Show full text]
  • The State Secrets Privilege: Alternative Remedies in Cases of Torture Abroad
    SCOTT FINAL2 (DO NOT DELETE) 2/6/2016 9:06 AM THE STATE SECRETS PRIVILEGE: ALTERNATIVE REMEDIES IN CASES OF TORTURE ABROAD I. INTRODUCTION A car salesman from Germany, Khaled El-Masri, was at the airport on his way to Macedonia.1 El-Masri was seized and abducted at this airport by Macedonian authorities on the pretense that he was a suspected terrorist.2 The Macedonian authorities held El-Masri captive and tortured him for almost a month whereupon they turned him over to United States CIA agents.3 While in the CIA’s custody, agents allegedly dressed him in a diaper, tracksuit, and earmuffs, then bound and sedated him on a flight to Afghanistan.4 In Afghanistan, he arrived at a prison where he was beaten and interrogated for four months by more agents.5 After four months of captivity and torture, the CIA later found out it had been a case of mistaken identity.6 El-Masri merely had a similar name as a suspected member of a terrorist organization.7 When the agents received the green light to release him two months after this discovery, they blindfolded and transported him to an abandoned road in a foreign country where this average car salesman was left to pick up the pieces of his life.8 The plaintiff in this case suffered irreparable damages, mentally and physically from being held captive and tortured. However, when El-Masri sued in the United States for damages, the case was dismissed because the 1. El-Masri v. Tenet, 437 F. Supp. 2d 530, 532 (E.D.
    [Show full text]
  • 2014Fallcorrected Version.Indd
    A PUBLICATION OF THE SILHA CENTER FOR THE STUDY OF MEDIA ETHICS AND LAW | FALL 2014 Debates Continue Over Net Neutrality as FCC Nears Decision on an “Open Internet” uring the summer and fall of 2014, federal policy FCC Proposes New “Open Internet” Rules makers and regulators continued to debate the On May 15, 2014, The New York Times reported that the role of “net neutrality” in managing Internet com- FCC had voted 3-2 to seek public comment on newly-proposed munication. The principle of net neutrality is based Open Internet rules. Protecting and Promoting the Open on the idea that the government should require Internet, GN Docket No.14-28, 29 FCC Rcd 5561 (2014). The DInternet service providers (ISPs) to treat all Internet traffi c the FCC’s proposed rules would allow content providers, such same. Net neutrality principles prevent ISPs from speeding up, as Facebook or Netfl ix, to pay ISPs for guaranteed “fast lane” slowing down, or blocking the delivery of lawful Internet data service to deliver content more rapidly to Internet subscribers. based on type of content, fi nancial arrangements, users, or web The rules also prohibited ISPs from knowingly slowing down sites. In the United States, the rules for net neutrality stemmed the delivery of data from content providers who declined to from a 2010 Federal Communications Commission (FCC) pay for upgraded service. The Times reported that the FCC’s order, In re Preserving the Open Internet, 25 F.C.C.R. 17905 proposed Open Internet rules contained provisions that would (2010). The order had several provisions, including mandates prohibit ISPs from blocking lawful web content, require ISPs to for ISPs to affi rmatively disclose information about Internet explain to consumers how web traffi c is managed, and create speed, terms of use, and management practices; anti-blocking an ombudsperson position who would act as an advocate on measures that prohibited ISPs from preventing consumers from behalf of the public in discussions about Internet regulation.
    [Show full text]
  • Assertion of State Secrets Privilege in Arar V. Ashcroft
    IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK . \ MAHER ARAR, Plaintiff, v. C.A. No. 04-CV-249-DGT-VVP JOHN ASHCROFT, et al., Defendants. NOTICE OF FILING Notice is hereby given of the filing of the declarations of James B. Corney, the Deputy Attorney General of the United States, acting by operation of law as Attorney General in the above- captioned matter (Exhibit 1), and Tom Ridge, Secretary of the Department of Homeland Security (Exhibit 2). In their capacity as the heads of their respective agencies, each declarant formally asserts the state secrets privilege over information at the core of Counts I, II and III of plaintiff's complaint. The United States' privilege assertion is further supported by classified declarations, including the classified declaration of Secretary Ridge, the classified declaration of Acting Attorney General Corney, and the classified declaration of Bruce J. Gebhardt, former Deputy Director of the Federal Bureau of Investigation. 1 These materials support dismissal of Counts I, II and III of plaintiff's complaint, with respect to all At the time the declaration was signed, September 14, 2004, Mr. Gebhardt was Deputy Director of the FBI. He has since retired. defendants, both in their individual and official capacities~ 2 In the event that the Court determines that review of these classified declarations is necessary to evaluate the assertion of the state secrets privilege in this case, the United States will make them available for the Court's ex parte, in camera review. Respectfully submitted, PETER D. KEISLER Assistant Attorney General Civil Division JEFFREY S.
    [Show full text]
  • University of Southampton Research Repository Eprints Soton
    University of Southampton Research Repository ePrints Soton Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", University of Southampton, name of the University School or Department, PhD Thesis, pagination http://eprints.soton.ac.uk UNIVERSITY OF SOUTHAMPTON FACULTY OF BUSINESS AND LAW School of Law Agamben, the Exception and Law by Thomas Michael Frost Thesis for the degree of Doctor of Philosophy August 2011 ii iii UNIVERSITY OF SOUTHAMPTON ABSTRACT FACULTY OF BUSINESS AND LAW SCHOOL OF LAW Doctor of Philosophy AGAMBEN, THE EXCEPTION AND LAW by Thomas Michael Frost Giorgio Agamben‘s work has been at the forefront of modern debates surrounding sovereign exceptionalism and emergency powers. His theory of the state of exception and engagements with Michel Foucault appear to focus upon sovereign power‘s ability to remove legal protections from life with impunity, described by the figure of homo sacer. Much secondary scholarship concentrates upon this engagement. This thesis contends that this approach is too narrow and assimilates Agamben‘s work into Foucault‘s own thought.
    [Show full text]
  • The NSA, AT&T, and the Secrets of Room 641A
    S L OF A J STEPHEN MANUEL WOLFSON* The NSA, AT&T, and the Secrets of Room 641A Abstract: This note discusses the possible existence of a domestic surveillance/data collection program conducted by the National Security Agency ("NSA") with the assistance of AT&T, and the implications of such a program under the Electronic Communications Privacy Act ("ECPA"). This article first examines a May 11, 2006 USA Today article reporting that the NSA was given access to a huge number of call records from AT&T. Next, it turns to the story of former AT&T technician Mark Klein and the Electronic Frontier Foundation's ("EFF") case, Hepting v. AT&T Corporation. Klein claims that the NSA has built a "secret room" in AT&T's San Francisco switching center that grants the agency access to a vast amount of customer information. In Hepting, the EFF alleges that AT&T violated the Stored Communications Act, Title II of the ECPA; the Wiretap Act, Title I of the ECPA; and the Pen Register Statute, Title III of the ECPA. Finally, this article addresses the Protect America Act of 2007 and provides analysis of expert opinions in the field. * Author is a J.D. candidate at The Ohio State University Moritz College of Law (expected 2008). I/S: A JOURNAL OF LAW AND POLICY [Vol. 3:3 I. INTRODUCTION: MAY 11, 2006 On May 11, 2006, USA Today published an article reporting that AT&T, Verizon, and Bellsouth had been providing the NSA with the telephone records of "tens of millions of Americans" since shortly after September 11, 2001.1 Called "the largest database ever assembled in the world" by the newspaper's source, its purported goal was to "'create a database of every call ever made' within the nation's borders."2 Supposedly, this program did not listen to or record conversations.
    [Show full text]
  • Held of Crimineel?
    Held of crimineel? Mediaframing rondom Edward Snowden Stefani Romani (s1601725) Masterthesis Journalistiek en Nieuwe Media Eerste lezer: Peter Burger Tweede lezer: Jaap de Jong Universiteit Leiden: 13 juli 2015 Voorwoord Om mijn studietijd succesvol af te sluiten moest er nog één ding gebeuren: het schrijven van een masterthesis. Een zware opgave naast fulltime stage lopen en nog andere vakken afronden, maar het is onder andere door de goede en snelle begeleiding van Peter Burger gelukt. Het onderzoek naar mediaframing rondom klokkenluider Edward Snowden is succesvol voltooid en vraagt nu alweer om vervolgonderzoek. Mijn studietijd zit erop en ik ben trots op dit eindresultaat. Een masterthesis die goed past binnen de studie Journalistiek & Nieuwe Media en hopelijk met veel nieuwsgierigheid en plezier wordt gelezen. Stefani Romani Delft, 13 juli 2015 2 Inhoudsopgave Voorwoord................................................................................................................................... 2 Samenvatting ............................................................................................................................... 5 1. Inleiding ................................................................................................................................... 6 2. Theoretisch kader ..................................................................................................................... 8 2.1 Edward Snowden ......................................................................................................................................................
    [Show full text]
  • United States Court of Appeals for the Ninth Circuit
    Docket Nos. 06-17132, 06-17137 In the United States Court of Appeals For the Ninth Circuit TASH HEPTING, GREGORY HICKS, ERIK KNUTZEN and CAROLYN JEWEL, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v. AT&T CORP., Defendant-Appellant, UNITED STATES OF AMERICA, Intervenor-Appellant. _______________________________________ Appeal from a decision of the United States District Court for the Northern District of California (San Francisco), No. 06-CV-00672 · Honorable Vaughn R. Walker CORRECTED ANSWERING BRIEF OF PLAINTIFFS-APPELLEES SEALED ELECTRONIC FRONTIER FOUNDATION HELLER EHRMAN LLP CINDY COHN,ESQ. ROBERT D. FRAM,ESQ. LEE TIEN,ESQ. E. JOSHUA ROSENKRANZ,ESQ. KURT OPSAHL,ESQ. MICHAEL M. MARKMAN,ESQ. KEVIN S. BANKSTON,ESQ. ETHAN C. GLASS,ESQ. JAMES S. TYRE,ESQ. SAMUEL F. ERNST,ESQ. 454 Shotwell Street NATHAN E. SHAFROTH,ESQ. San Francisco, California 94110 ELENA M. DIMUZIO,ESQ. (415) 436-9333 Telephone 333 Bush Street (415) 436-9993 Facsimile San Francisco, California 94104 (415) 772-6000 Telephone (415) 772-6268 Facsimile Attorneys for Appellees Tash Hepting, et al. Additional Counsel Listed Inside Cover COUNSEL PRESS · (800) 3-APPEAL PRINTED ON RECYCLED PAPER LAW OFFICE OF RICHARD R. WIEBE LERACH COUGHLIN STOIA RICHARD R. WIEBE,ESQ. GELLER RUDMAN & ROBBINS LLP 425 California Street, Suite 2025 ERIC A. ISAACSON,ESQ. San Francisco, California 94104 655 West Broadway, Suite 1900 (415) 433-3200 Telephone San Diego, California 92101-3301 (415) 433-6382 Facsimile (619) 231-1058 Telephone (619) 231-7423 Facsimile HAGENS BERMAN SOBEL SHAPIRO LLP REED R. KATHREIN,ESQ. LAW OFFICE OF ARAM ANTARAMIAN JEFFREY FRIEDMAN,ESQ. ARAM ANTARAMIAN,ESQ.
    [Show full text]
  • Brief of Respondents J. Stephen Tidwell and Barbara Walls in Support of Petition for a Writ of Certiorari
    No. 20-828 IN THE Supreme Court of the United States FEDERAL BUREAU OF INVESTIGATION, ET AL., Petitioners, v. YASSIR FAZAGA, ET AL., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF OF RESPONDENTS J. STEPHEN TIDWELL AND BARBARA WALLS IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI KATIE MORAN CATHERINE M.A. CARROLL WILMER CUTLER PICKERING Counsel of Record HALE AND DORR LLP HOWARD M. SHAPIRO 350 S. Grand Ave. JUSTIN M. BAXENBERG Suite 2400 WILMER CUTLER PICKERING Los Angeles, CA 90071 HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 (202) 663-6000 [email protected] QUESTION PRESENTED Whether § 1806(f) of the Foreign Intelligence Sur- veillance Act of 1978 displaces the state-secrets privi- lege and authorizes a district court to consider privi- leged evidence to resolve—in camera and ex parte, and in violation of the due process and jury trial rights of individual defendants—the merits of a lawsuit challeng- ing the lawfulness of government surveillance. (i) PARTIES TO THE PROCEEDING AND COMPLIANCE WITH RULE 12.6 Respondents J. Stephen Tidwell and Barbara Walls are defendants in the district court sued in their indi- vidual capacities. They are aligned in the district court with petitioners the United States of America; the Federal Bureau of Investigation (FBI); Christopher A. Wray, in his official capacity as Director of the FBI; and Kristi K. Johnson, in her official capacity as the As- sistant Director of the FBI’s Los Angeles Division, each of whom is a defendant in the district court.
    [Show full text]
  • The State Secrets Privilege: Overuse Causing Unintended Consequences
    THE STATE SECRETS PRIVILEGE: OVERUSE CAUSING UNINTENDED CONSEQUENCES Holly Wells∗ The state secrets privilege is an evidentiary privilege that requires either the outright dismissal of a case or significant limitations on discovery where litigation would involve the disclosure of important state secrets. This Note focuses on the Bush Administration’s attempt to dismiss all cases concerning the Extraordinary Rendition program and the National Security Agency’s warrantless wiretapping program by asserting the state secrets privilege. This Note argues that the Bush Administration has been unsuccessful in keeping information regarding these two programs secret and has instead drawn more attention to these two programs by its refusal to cooperate with the plaintiffs in these cases. If future administrations wish to better protect state secrets, the privilege should be asserted less often, should only be used to block some discovery, and the use of special measures and procedures should be employed. INTRODUCTION Since the attacks of September 11, 2001, President George W. Bush’s Administration has shown an increased trend towards secrecy and the denial of public access to information.1 One of the tools repeatedly invoked by the Bush * J.D. Candidate, University of Arizona James E. Rogers College of Law, 2009. I would like to thank Kelvin Jones II and my family for their helpful comments and feedback and for all the love and support. 1. See Emerging Threats: Overclassification and Psuedo-classification: Hearing Before the Subcomm. on National Security, Emerging Threats and International Relations of the Comm. on Government Reform, 109th Cong. 120 (2005) (statement of Thomas Blanton, Executive Director, National Security Archive), available at http:// www.access.gpo.gov/congress/house/pdf/109hrg/20922.pdf (discussing overclassification of documents under the Bush Administration); William G.
    [Show full text]
  • Bodies As Evidence Global Insecurities
    BODIES AS EVIDENCE GLOBAL INSECURITIES A SERIES EDITED BY CATHERINE BESTEMAN AND DANIEL M. GOLDSTEIN BODIES AS EVIDENCE Security, Knowledge, and Power Mark Maguire, Ursula Rao, and Nils Zurawski, editors Duke University Press Durham and London 2018 © 2018 Duke University Press All rights reserved Printed in the United States of America on acid- free paper ∞ Designed by Matthew Tauch Typeset in Minion Pro by Copperline Books Library of Congress Cataloging- in- Publication Data Names: Maguire, Mark, [date] editor. | Rao, Ursula, [date] editor. | Zurawski, Nils, [date] editor. Title: Bodies as evidence : security, knowledge, and power / Mark Maguire, Ursula Rao, and Nils Zurawski, editors. Description: Durham : Duke University Press, 2018. | Series: Global insecurities | Includes bibliographical references and index. Identifiers:lccn 2018015847 (print) lccn 2018019863 (ebook) isbn 9781478004301 (ebook) isbn 9781478001690 (hardcover : alk. paper) isbn 9781478002949 (pbk. : alk. paper) Subjects: lcsh: Human body. | Biometric identification. | Crime prevention. | Border security. | Terrorism — Prevention. Classification:lcc hm636 (ebook) | lcc hm636 .b543 2018 (print) | ddc 364.4 — dc23 lc record available at https://lccn.loc.gov/2018015847 Cover art: Spirit is a bone, 2013. © Broomberg and Chanarin. Courtesy of Lisson Gallery, London and New York. CONTENTS 1 Introduction: Bodies as Evidence Mark Maguire and Ursula Rao 1 24 The Truth of the Error: Making Identity and Security through Biometric Discrimination Elida K. U. Jacobsen and Ursula Rao 2 43 Injured by the Border: Security Buildup, Migrant Bodies, and Emergency Response in Southern Arizona Ieva Jusionyte 3 67 E- Terrify: Securitized Immigration and Biometric Surveillance in the Workplace Daniel M. Goldstein and Carolina Alonso- Bejarano 4 89 “Dead- Bodies- at- the- Border”: Distributed Evidence and Emerging Forensic Infrastructure for Identification Amade M’charek 5 110 The Transitional Lives of Crimes against Humanity: Forensic Evidence under Changing Political Circumstances Antonius C.
    [Show full text]
  • The State Secrets Privilege and Other Limits on Litigation Involving Classified Information
    The State Secrets Privilege and Other Limits on Litigation Involving Classified Information Edward C. Liu Legislative Attorney May 28, 2009 Congressional Research Service 7-5700 www.crs.gov R40603 CRS Report for Congress Prepared for Members and Committees of Congress The State Secrets Privilege: Limits on Litigation Involving Classified Information Summary The state secrets privilege is a judicially created evidentiary privilege that allows the government to resist court-ordered disclosure of information during litigation, if there is a reasonable danger that such disclosure would harm the national security of the United States. The Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds. In its opinion, the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court. The Classified Information Procedures Act (CIPA) provides pretrial procedures that permit a trial judge to rule on questions of admissibility involving classified information before introduction of the evidence in open court. The use of classified evidence may also implicate criminal defendants’ rights to exculpatory information and witnesses’ statements held by the prosecution, or their right to confront witnesses under the Sixth Amendment.
    [Show full text]