-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: September 1, 2007 9:40:08 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: U.S. Tries to Stop Lawsuit re: Banking Records, Cites
‘States Secrets’ Privilege
U.S. Tries to Stop Suit on Banking Records,
Cites ‘Secrets’ Privilege
The “state secrets” privilege, allowing the government to shut down
litigation on national security grounds, was once rarely used. The
Bush Administration has invoked it 39 times, to silence public
discussion of cases like the claims of an FBI whistleblower and the
CIA's abduction of terrorist suspects in Italy and Germany.
By ERIC LICHTBLAU
New York Times, August 31, 2007
http://www.nytimes.com/2007/08/31/us/nationalspecial3/31swift.html?
_r=1&ref=us&oref=slogin
WASHINGTON, Aug. 30 — The Bush administration is signaling that it
plans to turn again to a legal tool, the “state secrets” privilege,
to try to stop a suit against a Belgian banking cooperative that
secretly supplied millions of private financial records to the
United States government, court documents show.
The suit against the consortium, known as Swift, threatens to
disrupt the operations of a vital national security program and to
disclose “highly classified information” if it continues, the
Justice Department has said in court filings.
A hearing on the suit is scheduled for Friday in federal court in
Alexandria, Va.
The “state secrets” privilege, allowing the government to shut down
litigation on national security grounds, was once rarely used. The
Bush administration has turned to it more than 30 times in
terrorism-related cases, seeking to end public discussion of cases
like the claims of an F.B.I. whistle-blower and the abduction of a
German terrorism suspect.
Most notably, the administration has sought to use the privilege to
kill numerous suits against telecommunications carriers over the
National Security Agency’s eavesdropping program.
But a judge in California rejected the argument because the program
had been discussed so widely. The government challenge is pending
before the United States Court of Appeals for the Ninth Circuit,
where judges at a hearing two weeks ago expressed skepticism on the
secrecy argument.
Asserting the privilege requires the director of national
intelligence and the attorney general to certify legally the
potential harm to national security.
If the administration makes good on its intention to invoke the
privilege in the Swift suit, it would be one of the most
significant tests of the privilege.
Swift is considered the nerve center of the global banking
industry, routing trillions of dollars each day among banks,
brokerage houses and other financial institutions. Its partnership
with Washington, reported in The New York Times in June 2006, gave
Central Intelligence Agency and Treasury Department officials
access to millions of records on international banking transactions.
The access was part of an effort to trace money that investigators
believed might be linked to financing of terrorism.
Months after the Sept. 11, 2001, attacks, Swift began turning over
large chunks of its database in response to a series of unusually
broad subpoenas from the Treasury Department.
Administration officials have defended the program as an important
tool in the war on terror. European banking regulators and privacy
advocates were quick to denounce the program as improper and
possibly illegal.
The pressure resulted in an agreement this year by Swift and United
States officials to tighten restrictions for using the data.
Two American banking customers also sued Swift on invasion-of-
privacy grounds. Legal and financial analysts had expected that the
suit would have been thrown out because American banking privacy
laws are considered much laxer than those in much of Europe.
But the chief judge in Federal District Court in Chicago, James F.
Holderman, ruled in June that he would allow the suit to proceed,
partly on grounds of claims of a Fourth Amendment violation and his
finding that Swift’s arguments on that point were “unpersuasive.”
“The decision in Chicago was a pretty big win for our side,” Steven
E. Schwarz, a lawyer in Chicago who represents the plaintiffs, said
in an interview.
The Swift program, Mr. Schwarz said, “is an Orwellian example of
government overreaching and unfettered access to private financial
information that is not consistent with the values upon which our
country was founded.”
Judge Holderman did agree to move the suit to the federal court in
Alexandria at the request of Swift lawyers. Its main American arm
operates from Manassas, Va.
The hearing on Friday is on a motion by Swift for Judge T. S. Ellis
to reconsider Judge Holderman’s ruling.
In a motion filed on July 25, the Justice Department urged the
court to throw out the suit to “preserve” the program against
financing terrorism, “protect Swift from the burden of further
litigation here and minimize the likelihood that highly classified
information will be threatened.”
The department said this week that it would send a lawyer to the
hearing, but it was unclear whether the “state secrets” privilege
would be raised.
Lawyers for the Justice Department and Swift would not discuss the
case in substance beyond the court filings.
The administration has turned to the privilege much more frequently
than past administrations. According to a report due out this
weekend by an advocacy group, OpenTheGovernment.org, the
administration has used it 39 times in the last six years, compared
with 59 times in the 24 years before that.
Historically, courts have been reluctant to challenge the secrecy
privilege. But the administration has suffered setbacks in seeking
to use the secrecy claim in the eavesdropping case and several
other recent cases.
“We’ve seen a real erosion of the ‘state secrets’ privilege in the
last year,” said Mr. Schwarz, the lawyer suing Swift. “I think it
is from overuse. We’ve seen it used in record numbers, in
situations where it was inappropriate, and the courts are starting
to recognize that.”
Tom Blanton, director of the National Security Archive at George
Washington University, said: “What seems clear is that until a year
or two ago, the judges rarely even questioned it when the
government raised the ‘state secrets’ claim. It was a neutron bomb
— no plaintiffs left standing.
“But we’re now seeing that judges are starting to actually look
behind the government’s secrecy claims and see what’s really there.”
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