This Washington Post recently had a story on a second instance of the Obama Department of Justice invoking "state secrets" in an effort to shut down a lawsuit challenging violations by the Bush Administration of individuals’ constitutional rights.
The first instance, in February, came in the case of Mohamed et al. v. Jeppesen, a suit challenging a company’s alleged participation in the rendition of terrorism suspects to countries where they suffered torture. At that time, People For the American Way decried the "blow to our much-needed efforts to restore justice." This time the lawsuit involves allegations by the al-Haramain Islamic Foundation that the federal government used warrantless wiretaps to gather information on the charity’s board members and attorneys in violation of their due process and free speech rights.
The Post story reports that in addition to invoking the state secrets privilege to terminate the lawsuit — thereby denying the charity its day in court — the Justice Department is also threatening to remove the documents from the district court’s custody to keep them out of the hands of the charity’s lawyers. No doubt there must be a careful balancing of competing interests in these kinds of cases — legitimate efforts to protect our nation’s security versus holding the government accountable for violations of individuals’ constitutional rights. But I must say the balancing that appears to be going on in these instances is making me pretty nervous.