“Examining The State Secrets Privilege: Protecting National Security While Preserving Accountability”

Today, the Judiciary Committee turns its attention to the state secrets privilege – a common law doctrine the government can claim in court to prevent evidence that could harm national security from being publicly revealed.  I want to thank Senators Specter and Kennedy for their help in planning this hearing, and commend them for their work on legislation that would create uniform standards to guide courts in evaluating state secrets privilege claims.

Over the past seven years, the Bush administration has aggressively sought to expand executive power in alarming ways.  Public accountability has been repeatedly frustrated because so many of the administration’s actions have been cloaked in secrecy.  Time and again, the administration has fought tooth and nail to prevent the American people and Congress from having information about its policies and practices. 

It is through the press that we first learned about secret surveillance of Americans by their own government in the years after 9/11, secret renditions abroad in violation of U.S. laws, secret prisons abroad, secret decisions to fire some of the nation’s top prosecutors, and the secret destruction of interrogation tapes that may have contained evidence of torture.  Having relied on an overly expansive, self-justifying view of executive power, the Bush administration now seeks secrecy for its actions.  It has taken a legal doctrine that was intended to protect sensitive, national security information and seems to be using it to evade accountability for its own misdeeds.


The state secrets privilege has been used in recent years to stymie litigation at its very inception in cases alleging egregious government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of American citizens.  Reflecting on recent state secrets litigation, The New York Times has observed: “To avoid accountability, [the Bush] administration has repeatedly sought early dismissal of lawsuits that might finally expose government misconduct, brandishing flimsy claims that going forward would put national security secrets at risk.”


The clearest example of the state secrets privilege short-circuiting litigation is the 2006 case of Khaled El-Masri.  Mr. El-Masri, a German citizen of Lebanese descent, alleged that he was kidnapped on New Year’s Eve in 2003 in Macedonia, and transported against his will to Afghanistan, where he was detained and tortured as part of the Bush administration’s extraordinary rendition program.  He sued the government over his alleged detention and harsh treatment.  A district court judge in Virginia dismissed the entire lawsuit on the basis of an ex parte declaration from the Director of the CIA and despite the fact that the government has admitted that the rendition program exists.  Mr. El-Masri has no other remedy.  Our justice system is off limits to him, and no judge ever reviewed any of the actual evidence.      


The government has also asserted the state secrets privilege in the litigation over the warrantless wiretapping of Americans that took place for more than five years.  There, a district court judge has rejected the government’s claim that the very subject matter at issue was a state secret, but the government is appealing. 


The state secrets privilege serves important goals where properly invoked.  But there are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious government misconduct.  For the aggrieved parties, it means that the courthouse doors are closed – forever – regardless of the severity of their injury.  They will never have their day in court.  For the American public, it means less accountability, because there will be no judicial scrutiny of improper actions of the executive, and no check or balance. 


Senator Specter, Senator Kennedy and I have introduced a bill to help guide the courts to balance the government’s interests in secrecy with accountability and the rights of citizens to seek judicial redress.  The bill does not restrict the government’s ability to assert the privilege in appropriate cases.  Rather, the bill would allow judges to look at the actual evidence that the government submits is protected by the state secrets privilege so that they, neutral judges, rather than self-interested executive branch officials, would render the ultimate decision whether the state secrets privilege should apply.  This is consistent with the procedure for other privileges recognized in our courts.


When I think about this administration’s expansive use of the state secrets privilege, I am reminded of another secretive administration that was involved in the Watergate scandal and the Pentagon Papers case.  That was a case about the government’s attempt to hide an historical study of this country’s involvement in Vietnam.  The Nixon administration contended that knowledge of the study would pose “grave and immediate danger to the security of the United States.” Fortunately, the United States Supreme Court reaffirmed the vitality of our rights and system of government when it decided the Pentagon Papers case.  In his concurring opinion Justice Black noted: “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”  The same government tendency toward self-serving secrecy that the Nixon administration was promoting then is evident once again in the Bush-Cheney administration’s aggressive use of the state secrets privilege. 


Secrecy can be important to national security, but it can also deprive the American people of their ability to judge the effectiveness of their government on national security matters.  It is critical that federal judges not abdicate their role in our system of checks and balances as a check on the executive.


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For Background


State Secrets Protection Act (S. 2533)
Section-by-Section Summary


Section 4051: Definition

Defines state secrets as “any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States.”  Not included is information that is already public or that has only a remote chance of harming national security.


Section 4052: Rules governing procedures related to this chapter

Allows the court to determine who will have access to documents and proceedings under the Act.  The court may, in the interest of justice and national security, limit a party’s access to hearings, court filings, and affidavits, or require that attorneys have appropriate security clearances.  The court may also assign a guardian ad litem or appoint a special master to assist in the proceedings.


Section 4053: Procedures for answering a complaint

Allows the government to intervene in any civil lawsuit to assert the privilege, which is no change from current practice.  The court may not dismiss a lawsuit on state secrets grounds at the pleadings stage; it may dismiss a case on state secrets grounds only under Section 4055, after the parties have presented their evidence and the court has reviewed it.  The government must file an answer to a complaint, but it may avoid admitting or denying certain facts by pleading “state secrets” to any allegation in a complaint.  Each time the government pleads the privilege, it must submit an affidavit signed by the relevant agency head explaining why it is claiming the privilege.


Section 4054: Procedures for determining whether evidence is protected from disclosure by the state secrets privilege

Sets forth procedures for determining whether evidence is protected by the state secrets privilege.  The court schedules a hearing to consider the government’s argument.  The government must present to the court the evidence it asserts is protected by the privilege, and support its assertion with a signed affidavit.  The court must make a privilege determination for each piece of evidence; if it contains a state secret, or cannot be effectively segregated from other evidence that contains a state secret, the evidence is privileged and may not be released.  If the court finds that the evidence is privileged, it shall order the government where possible to create a non-privileged substitute for the evidence, such as an unclassified summary, a redacted version, a statement admitting the facts that the privileged evidence would tend to prove, or another alternative crafted by the court.  If the government refuses to provide a non-privileged substitute ordered by the court, the court shall resolve the relevant issue of fact or law against the government.


Section 4055:  Procedures when evidence protected by the state secrets privilege is necessary for adjudication of a claim or counterclaim

If the court finds that evidence is protected by the privilege and it is impossible to create substitute evidence, the court may dismiss the claim if it finds that doing otherwise would substantially impair the ability of a party to pursue a valid defense to the claim.  The purpose of this Section is to protect parties for whom privileged evidence would provide a valid legal defense if they were able to introduce it.


Section 4056: Interlocutory appeal

Allows any party an expedited interlocutory appeal of any order under the Act.  Such an appeal ensures a timely additional layer of review.


Section 4057: Security procedures

Draws heavily on the Classified Information Protection Act to provide security procedures.


Section 4058: Reporting

Requires the Attorney General to report within 30 days to the House and Senate Intelligence and Judiciary Committees on each instance in which the United States claims the state secrets privilege, including turning over copies of the affidavits required under Sections 4053 and 4054 of the Act.


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Press Contact

David Carle: 202-224-3693

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