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Location: UFOUpDatesList.Com > 2007 > Aug > Aug 18

Secrecy News -- 08/17/07

From: Steven Aftergood <saftergood.nul>
Date: Fri, 17 Aug 2007 13:00:01 -0400
Archived: Sat, 18 Aug 2007 16:57:47 -0400
Subject: Secrecy News -- 08/17/07


SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 85
August 17, 2007

Secrecy News Blog: http://www.fas.org/blog/secrecy/

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


**	COURT OVERTURNS DISMISSAL OF "STATE SECRETS" CASE
**	CRS REPORTS ON VARIOUS TOPICS


COURT OVERTURNS DISMISSAL OF "STATE SECRETS" CASE

In an unusual move that may signal a new, more discriminating
judicial view of the state secrets privilege, a federal appeals
court recently reinstated a lawsuit which a lower court had
dismissed after the government invoked the state secrets
privilege.

The lawsuit was originally filed in 1994 by former Drug
Enforcement Administration official Richard Horn who alleged
that the State Department and the Central Intelligence Agency
had unlawfully eavesdropped on his communications while he was
stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and
moved for dismissal of the case. The government motion was
granted by the D.C. district court in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20),
the D.C. Circuit Court of Appeals overturned the dismissal. The
Court did not dispute the government's invocation of the state
secrets privilege, but concluded that there was sufficient
unprivileged evidence on the record to permit the plaintiff to
argue his case.

"In many state secrets cases, a plaintiff has no prospects of
evidence to support the assertions in his complaint and this
lack of evidence requires dismissal. Here, however, Horn [the
plaintiff] is not without evidence," the Court said.

The Court presented its ruling as a straightforward application
of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of
the Court said that the decision to reinstate the lawsuit could
fundamentally alter the use of the state secrets privilege.

"The majority's reversal of the district court's decision,"
wrote Judge Janice Rogers Brown, "pushes this circuit's state
secrets jurisprudence in a new and troubling direction -- one at
odds with all other circuits that have considered the issue."

The case was remanded to the district court level for further
deliberation.

See the unsealed Appeals Court ruling "In Re: Sealed Case," June
29, 2007 here:

http://www.fas.org/sgp/jud/statesec/horn062907.pdf

Coincidentally, the American Bar Association (www.abanet.org)
this week adopted a resolution urging that "whenever possible,"
federal civil cases should not be dismissed "based solely on the
state secrets privilege."

The ABA resolution also proposed a set of legislative changes
designed "to encourage meaningful judicial review of assertions
of the state secrets privilege" and to regulate use of the
privilege.

A copy of the ABA resolution, adopted August 13, and an
accompanying report elaborating on its recommendations may be
found here:

http://www.fas.org/sgp/jud/statesec/aba081307.pdf


CRS REPORTS ON VARIOUS TOPICS

Recent reports from the Congressional Research Service that have
not been made readily available to the public include the
following.

"Capital Punishment Overview: 2006-2007 Term of the Supreme
Court," July 20, 2007:

http://www.fas.org/sgp/crs/misc/RL34100.pdf

"Globalization, Worker Insecurity, and Policy Approaches,"
updated July 24, 2007:

http://www.fas.org/sgp/crs/misc/RL34091.pdf

"Executive Branch Reorganization and Management Initiatives: A
Brief Overview," updated July 10, 2007:

http://www.fas.org/sgp/crs/misc/RL33441.pdf

"Constitutional Limits on Punitive Damages Awards: An Analysis
of the Supreme Court Case Philip Morris USA v. Williams,"
updated July 17, 2007:

http://www.fas.org/sgp/crs/misc/RL33773.pdf

"Internet Search Engines: Copyright's 'Fair Use'" in
Reproduction and Public Display Rights," updated July 12, 2007:

http://www.fas.org/sgp/crs/misc/RL33810.pdf

"Nuclear Energy Policy," updated July 12, 2007:

http://www.fas.org/sgp/crs/misc/RL33558.pdf

"The Committee on Foreign Investment in the United States
(CFIUS)," updated July 23, 2007:

http://www.fas.org/sgp/crs/natsec/RL33388.pdf

"Private Security Contractors in Iraq: Background, Legal Status,
and Other Issues," updated July 11, 2007:

http://www.fas.org/sgp/crs/natsec/RL32419.pdf




_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
http://www.fas.org/sgp/news/secrecy/subscribe.html

OR email your request to saftergood.nul

Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html

SUPPORT Secrecy News with a donation here:
http://www.fas.org/static/contrib_sec.jsp


_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:  www.fas.org/sgp/index.html
email: saftergood.nul
voice: (202) 454-4691



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