- The Washington Times - Friday, January 16, 2009

The American Civil Liberties Union filed a lawsuit Thursday in Northern Virginia that challenges 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 the public, the ACLU said 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 claims 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 states whistleblower suits typically remain under seal for two or three years and have been under seal for as long as nine years.

While some cases may require secrecy, the ACLU suit states 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 B. Mukasey and Alexandria court clerk Fernando Galindo, who under the law is required to seal the cases, as defendants.

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