ACLU challenges secrecy of US whistleblower law

ALEXANDRIA, Va. (AP) -- The American Civil Liberties Union filed a lawsuit Thursday challenging the constitutionality of a law that requires whistleblowers with allegations of war profiteering or other contract fraud to file their lawsuits in secret.

The secrecy requirements of the federal False Claims Act violate freedom-of-speech protections and have kept war fraud complaints in Iraq and elsewhere hidden from public view, the ACLU says in its lawsuit.

"Secret courts and secret proceedings have no place in this country," said Chris Hansen, senior attorney with the ACLU's First Amendment Working Group, in a statement.

The lawsuit, filed in U.S. District Court in Alexandria, also alleges that the Justice Department has abused the law to keep allegations hidden for years.

Justice Department spokesman Charles Miller said the department will review the lawsuit and respond in court.

The False Claims Act allows whistleblowers with knowledge of contract fraud to collect damages if they come forward. But they must file their lawsuits in secret until the Justice Department evaluates the allegations.

In July 2007, the Justice Department estimated that more than 1,000 False Claims Act lawsuits were under seal. It is unknown how many deal with claims of war profiteering.

In the lawsuit, the ACLU says whistleblower suits typically remain under seal for two or three years and have been under seal for as long as nine years.

The lawsuit cites several ongoing whistleblower cases in the Alexandria courthouse as evidence of the delays. A case against Houston-based war contractor KBR Inc. alleges the company billed the government for meals it did not provide and inflated prices of housing containers it built for the military. It remained under seal for more than a year before the Justice Department declined to intervene.

The Justice Department also declined to intervene more than a year after a whistleblower case was filed against First Kuwaiti General Trading and Contracting Co., the company that built the U.S. Embassy in Iraq. In that case, whistleblowers alleged that workers were duped into going to Iraq after being told the jobs were in Dubai.

The contractors in the two cases deny the allegations.

Cases in which the Justice Department declines to intervene are allowed to proceed without their involvement.

The False Claims Act, enacted in 1863, was amended in 1986 to require secret pleadings. The Justice Department said this was necessary to ensure that defendants would not be tipped off to parallel criminal investigations.

While some cases may indeed require secrecy, the ACLU suit says that should be done on a case-by-case basis when a need has been demonstrated, rather than the blanket secrecy provisions of the current law.

The lawsuit names Attorney General Michael Mukasey and Alexandria court clerk Fernando Galindo, who under the law is required to seal the cases, as defendants.

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