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72 | The Architecture of Impunity if the government is watching them, and the government does not confirm or deny individuals’ suspicions. When parties bringing lawsuits have sought more definitive information to show standing, the government has resisted these efforts by citing the state secrets privilege. Indeed, in one well-known case, the organization bringing the case had inadvertently received information from the government that showed it might have been a target of surveillance . But the court held that the privilege applied to this information, too. Without the information, the plaintiff could not show standing.122 While it is easy to condemn the government’s use of the state secrets privilege in such cases, the question is a difficult one. Courts should not force the government to disclose sensitive information about technological innovations or particular search criteria used for combing through vast pools of information. Such disclosures would allow genuine terrorists to gauge our defenses, and game the system. At the same time, some check is needed to prevent the government from using the state secrets privilege to shield incompetence and overreaching. Congress is considering legislation, entitled the State Secrets Protection Act,123 which received support from Senators Edward Kennedy, Arlen Specter, and others, to ameliorate this difficulty. This legislation would allow greater in camera review by courts. When the government asserted the state secrets privilege, a court would review the relevant material in private without disclosing it to the other side. If the material fit the privilege, the government would prevail. If the court was not satisfied that the material fit within the state secrets privilege, however, the court would entertain further proceedings on the matter. In addition, the proposed bill would require that courts consider whether the government could submit a substitute for the privileged information, such as a summary or a stipulation that would not injure national security. An existing law, the Classified Information Procedures Act (CIPA),124 works well, by giving courts discretion to devise such substitutes with the cooperation of the parties. The proposed bill would mitigate the catch-22 that litigants now face. Claiming Immunity in Court In addition to doctrines like state secrets that shield information, Bush officials also advanced a phalanx of reasons for why they could not be sued at all. In some cases Bush officials claimed that even if all the misconduct alleged by their adversary had happened, their adversary lacked a legal vessel or “cause of action” to carry his claims to court. In other cases, Bush officials The Architecture of Impunity | 73 said a court could consider the lawsuit, but was obliged to dismiss it because officials had immunity. These arguments against accountability are not new, and indeed are sometimes necessary to prevent officials from being “chilled” in their job performance. But Bush officials sought to expand these doctrines to provide additional insulation to wayward officials. Consider first the argument of Bush officials like Attorney General Ashcroft in the case of Maher Arar that the alleged victim of overreaching had no legal vessel available to him to seek redress.125 In Bivens v. Six Unknown Federal Agents,126 the Supreme Court held that an individual subject to a violent , brutal, and flagrantly illegal search by federal officials could sue federal officials directly under the Constitution, instead of depending on Congress to pass a statute that provided a cause of action. Bivens suits, as they are called, have gone forward in many courts since then to remedy wrongs that would otherwise go unaddressed. The Supreme Court, however, has been reluctant to expand the categories of cases in which Bivens suits are appropriate. In checking the development of this area of law, the Supreme Court has said that courts should consider that “special factors” might make a Bivens lawsuit particularly disruptive in a category of cases, thereby rendering it inadvisable to provide a remedy. The government relied on this “special factors” test to contest accountability in the extraordinary rendition case of Arar, a Canadian citizen whom American officials removed to Syria, where he was tortured. First, the government argued that one “special factor” was Arar’s failure to invoke his rights under the Immigration and Nationality Act, which permits those facing deportation to seek judicial review. According to the government, granting Arar a Bivens remedy would undermine the Immigration Act’s comprehensive scheme. The government undercut its argument, however, by impeding Arar’s ability to seek recourse under the statute, misleading his attorney about his whereabouts and officials’ intent to summarily...

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