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.
While the new DOJ policy implementing more rigorous review of the government's use of national security claims will cut down on such abuse going forward, Attorney General Holder must intervene in the Vieques case to make sure that his legacy is not tarnished by a prime example of such abuse happening right now. Dropping the sovereign immunity defense in the Vieques case would demonstrate this administration's commitment to ending the overzealous use of national defense claims.
The government should immediately retract its foolish sovereign immunity defense in the Vieques case and allow the people of Vieques a fair shake with justice. Better yet, the Justice Department could settle the matter now, allowing the expedited cleanup of the island to commence and the economic and physical impacts endured by the islanders to begin to be remedied.
There is no acceptable excuse for the government's delay in providing relief for Vieques. President Obama promised such remedies in a letter to the people of Puerto Rico in February 2008. The Puerto Rican House and Senate have both recognized that the U.S. v. Sanchez lawsuit -- in which the government is claiming sovereign immunity -- provides an excellent mechanism for the government to settle and provide remedies to the people of Vieques.
Six decades of bombing trashed this once-pristine paradise, and it is up to the Obama Justice Department to make amends with the victims who have sacrificed greatly for this nation by enduring the Navy's bombardment and ongoing contamination.
Attorney General Holder must act now to correct this injustice.
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