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The Justice Department announced a much-needed new policy last week that will impose strict limits on government agencies’ use of the state secrets privilege in order to block lawsuits for national security reasons.  Under the new rules, any military or espionage agency wishing to assert the privilege in order to dismiss a lawsuit or restrict evidence in court must meet a higher standard of proof that it would pose "significant harm" to national security.  The new policy also requires the approval of Attorney General Eric Holder for any attempt to use the privilege in court.
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This policy shift may also provide a ray of hope for the residents of Vieques, who are suing the federal government over the U.S. Navy’s 60-year bombardment of their island for training purposes.  The Navy bombing left behind a toxic legacy of contamination and disease that hampers the island’s economy and continuously threatens the health of its residents.  

Read more: http://www.huffingtonpost.com/...

The Justice Department announced a much-needed new policy last week that will impose strict limits on government agencies’ use of the state secrets privilege in order to block lawsuits for national security reasons.  Under the new rules, any military or espionage agency wishing to assert the privilege in order to dismiss a lawsuit or restrict evidence in court must meet a higher standard of proof that it would pose "significant harm" to national security.  The new policy also requires the approval of Attorney General Eric Holder for any attempt to use the privilege in court.

"This policy is an important step toward rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security.  It sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible," Holder said in a statement announcing the policy.

Reining in the use of this privilege, which was abused heavily during the Bush administration, is a step in the right direction.  For far too long, the government has hidden behind disingenuous claims of national security threats in order to deny justice for those injured or wronged by our own military.  The new DOJ policy indicates that the Obama Justice Department understands this problem and is working to correct it.

This policy shift may also provide a ray of hope for the residents of Vieques, who are suing the federal government over the U.S. Navy’s 60-year bombardment of their island for training purposes.  The Navy bombing left behind a toxic legacy of contamination and disease that hampers the island’s economy and continuously threatens the health of its residents.  

Attorneys representing more than 7,000 citizens and the municipality of Vieques have presented extensive scientific evidence of the harmful impacts on the environment and on the food supply of the fish-loving islanders.  They have presented ample evidence of the health crisis caused by the contamination left behind by the Navy, including astronomical rates of cancer, birth defects and other pollution-related illnesses which plague residents. The damage done to the island’s tourism-driven economy is also readily apparent.  

Public outrage over the government’s neglect of the plight of Vieques residents has compelled both houses of the Puerto Rican legislature and a special committee of the United Nations to pass resolutions demanding justice for the people of Vieques and a thorough clean-up of their island.

Despite all of this evidence and public pressure, there is one major obstacle standing in the way of justice for the people of Vieques - the government’s use of an archaic "sovereign immunity" defense - which would block the lawsuit on national security grounds if accepted by the trial judge currently deliberating the case.  This outlandish use of the national security defense was initiated by the Bush administration and, so far, upheld by the Obama Justice Department.  

Continue reading at http://www.huffingtonpost.com/...

Originally posted to bdemelle on Tue Sep 29, 2009 at 12:39 PM PDT.

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Comment Preferences

  •  Nothing has changed. The AG has always (0+ / 0-)

    had the final say. All this noise boils down to "trust me".  
    BTW - "sovereign immunity" is not a "national security defense".

    "Fascism should more properly be called corporatism because it is the merger of state and corporate power." -- Benito Mussolini

    by enhydra lutris on Tue Sep 29, 2009 at 03:49:35 PM PDT

    •  That's an interesting take. I disagree (0+ / 0-)

      "Nothing has changed" is a pretty bold statement. My piece is about Vieques, not torture and wiretapping, so please take a minute to review the facts in the Vieques case before dismissing my argument.

      Regarding your assertion that "sovereign immunity is not a national security defense," I suggest you review this case, which has flipped that historical assumption on its head.  The Navy and Bush DOJ were absolutely hiding behind a national security argument in their attempt to assert the sovereign immunity defense to block the Vieques lawsuits.  The Navy argued that its bombing of Vieques was imperative on grounds of national security. So the Bush DOJ (wrongly) invoked sovereign immunity to block the U.S. citizens of Vieques from suing the government.

      As Scott Horton of Harper's summarizes:
      "The doctrine of sovereign immunity exists in two forms—one protecting foreign sovereigns from suits in our courts on the grounds that such suits could interfere with or undermine our relations with those foreign sovereigns. The other protects the government against its citizens, based on the ancient notion that the "king can do no wrong" and therefore cannot be challenged in the courts save with his permission. This is a perfectly fine legal principle—for an absolute monarchy or a totalitarian dictatorship. Democracies, however, have different rules. First among them is the idea that the government is accountable to its citizens."

      It is inexcusable for the Obama DOJ to continue pursuing the sovereign immunity defense based on the Navy's bogus claim of a national security imperative for bombing Vieques. My piece argues for the accountability which Horton mentions, and which the people of Vieques fully deserve.

      •  2 separate issues (0+ / 0-)

        What has changed?  Before this earth shaking new pronouncement, the decision of what defense(s) to invoke when was ultimately the AGs call.  Since there was no external restrictions or limitations on the states secrets defense, we simply had to trust the AG not to abuse it.

        Now, as a result of this earthshaking new pronouncement, the decision of what defense(s) to invoke when was ultimately the AGs call.  Since there was no external restrictions or limitations on the states secrets defense, we simply had to trust the AG not to abuse it.

        Nothing has changed, this is still just "trust me".

        As you note, sovereign immunity:

        protects the government against its citizens, based on the ancient notion that the "king can do no wrong" and therefore cannot be challenged in the courts save with his permission

        The U.S. has sovereign immunity and may not be sued except where it has decided to permit such a suit.  It is in no way a states secrets defense.

        The Bush DOJ may have based its decision on alleged national security grounds, fear of Gog and Magog, random malice, or anything else, but that does not change the facts that 1) the US has sovereign immunity under US law and 2) it is not a national security defense, but a simple prohibition on suing the US without its permission.

        "Fascism should more properly be called corporatism because it is the merger of state and corporate power." -- Benito Mussolini

        by enhydra lutris on Wed Sep 30, 2009 at 04:02:57 PM PDT

        [ Parent ]

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