Wednesday, April 23, 2008

Judge Rejects Bush Administration's 'State Secrets' Claim

CHICAGO, April 23 /PRNewswire-USNewswire/ -- In a case challenging repeated, lengthy and abusive border stops of American citizens upon their return to the United States after traveling abroad, a federal magistrate judge in Chicago has ordered the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI) to disclose to the named plaintiffs whether or not their names appear on the Terrorist Screening Database (TSDB). In making his ruling, U.S. Magistrate Judge Sidney Schenkier rejected the Bush Administration's assertion of a "state secrets" privilege. Under the order made public for the first time last week, the government must produce documents indicating whether the ten named plaintiffs in the case, including lead plaintiff Akif Rahman of suburban Chicago, are listed on the TSDB.

In rejecting the government's argument that revealing any information about the plaintiffs' status on the TSDB would reveal "secret" information, Judge Schenkier wrote that "courts may not uncritically accept the government's assertion of the state secrets privilege." After reviewing arguments on both sides, Judge Schenkier noted that the government "on certain occasions has disclosed to persons information that would tend to confirm or deny their TSDB status." Judge Schenkier's reference was to several letters written to members of Congress who inquired about the repeated stops of their constituents.

The Bush Administration repeatedly has invoked a claim of "state secrets" as a shield against judicial review of various surveillance and other policies secretly implemented in recent years. The Administration, as an example, invoked "state secrets" to block litigation brought on behalf of Khaled El-Masri, a German National who was kidnapped while on vacation in Macedonia, secretly transported to Afghanistan and subjected to beatings and torture. In response to this case and others, legislation was introduced in both the U.S. House and the Senate to regulate the assertion of the "state secrets" privilege, calling for judicial review of the actual materials claimed to contain state secrets.

"We are gratified with the judge's decision," said Harvey Grossman, Legal Director of the ACLU and lead counsel in Rahman v. Chertoff. "The government should not be able to end litigation and escape accountability for mistreatment of our fellow citizens simply by asserting that the case will result in the revelation of state secrets."

"Judge Schenkier has provided a process where our clients get their day in court and national security is protected," added Grossman.

The redacted ruling issued last week is the latest development in a lawsuit filed on behalf of Mr. Rahman in June 2005 asking the federal government to implement changes to the Federal Bureau of Investigation's Terrorist Screening Center (TSC) and the policies of Customs and Border Protection (CBP) to ensure that he no longer was subjected to detentions and harassment by federal officials when re-entering the United States. Since March 2004, Mr. Rahman was detained and questioned by Department of Homeland Security (DHS) officials on multiple separate occasions as he re-entered the country after business or personal trips abroad, detentions lasting unreasonably lengthy times -- up to six hours. On one occasion, Mr. Rahman was subjected to unnecessary excessive force during a body search, and painfully shackled to a chair for approximately three hours while isolated from his wife and children............

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