Kennedy, Specter, Leahy On State Secrets Committee Passage

WASHINGTON, DC— Today, the Senate Judiciary Committee reported S. 2533, the “State Secrets Protection Act,” on a bipartisan vote.  The Bush administration has asserted the privilege in numerous cases challenging the constitutionality of its programs—from wiretapping without warrants, to extraordinary rendition, to interrogation—and the need for congressional action is clear.  The State Secrets Protection Act provides detailed guidance to the federal courts, bringing clarity, predictability, and fairness to their review of assertions of the privilege.  Senators Kennedy, Specter and Leahy, the original co-sponsors of the legislation, released the following statements:

Senator Kennedy said, “It’s long past time for Congress to address the state secrets privilege.  Congress needs to ensure—and the American people need to feel confident—that the courts are adjudicating the privilege properly and not just giving the Executive a free pass.  This legislation is not just about safeguarding the rights of private parties, important as that is.  It’s also about safeguarding the public interest, shared by all Americans, in having an executive branch that complies with the law and the Constitution and in preserving the integrity of our courts.  No one in America should be above the law.  That’s why this legislation is so critical and why it has such broad support.”

“I am pleased with the committee action on this bill as it is a modest and timely attempt to provide more oversight of the state secrets privilege,” Senator Specter said.  “While national security must be protected, there must also be meaningful oversight by the courts and Congress to ensure the Executive branch does not misuse the privilege.”

Senator Leahy said, “The Senate should consider this carefully crafted legislation quickly.  This administration continues to show unprecedented deference to secrecy rather than transparency.  The State Secrets Protection Act clarifies that no one, not even a president, is above the law.  We can have security while preserving the Constitution’s system of checks and balances and the important role of the courts.  This legislation is a step to ensure that our laws protect both.”

What the bill does


1.                 The bill provides a uniform set of procedures for federal courts faced with claims of the “state secrets privilege,” ensuring clarity, predictability, and fairness in judicial review of the privilege.


2.                 The bill codifies many of the “best practices” that are already available to courts, but that often go unused, such as in camera hearings, non-privileged substitutes, and special masters.


3.                 The bill requires judges to look at the actual evidence that the government claims is privileged, rather than rely solely on government affidavits, so that the privilege is not abused by the Executive to cover up information that is not actually sensitive.


4.                 The bill forbids judges from dismissing cases at the pleadings stage, before there’s been any document discovery, so that plaintiffs making claims against the government have a chance to make a preliminary case using evidence that they’ve gathered on their own.  At the same time, the bill protects innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense.


5.                 The bill instructs judges to order the government to produce unclassified or redacted versions of sensitive evidence, when this is possible, to allow cases to go forward safely.


6.                 The bill puts in place numerous security procedures to ensure that secrets don’t leak out during litigation, such as closed hearings, security clearance requirements, sealed orders, and expedited appeals.


7.                 The bill sets congressional reporting requirements to ensure that Congress stays informed on use of the privilege.


8.                 The bill solves the crisis of legitimacy currently surrounding the privilege, by setting clear rules that take into account both national security and the Constitution.


Summary of the bill


Section 4051:  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.” 

  • This is a broad definition, but it does not include information that is already public or that has only a remote chance of causing harm.


Section 4052:  Allows the court to determine who will have access to documents and proceedings. 

  • The court may limit a party’s access to hearings and court filings, or require that attorneys have appropriate security clearances.  These procedural safeguards will protect national security.
  • The court may assign a “guardian ad litem” to represent a party if the party has no cleared counsel, and the court may appoint a “special master” to help it sort through complicated evidence.


Section 4053:  Sets rules for asserting the privilege.

  • 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 answer a complaint, but it can avoid admitting or denying certain facts by pleading “state secrets” to any allegation. 
  • 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:  Sets rules for determining whether evidence is protected from disclosure by the privilege.

  • The court schedules a closed (“in camera”) 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. 
  • If the court finds that evidence contains a state secret, or cannot be effectively separated from other evidence that contains a state secret, then the evidence is privileged and may not be released for any reason.
  • When evidence is found to be privileged, the court must, if possible, order the government to create a non-privileged substitute for the evidence, such as an unclassified summary or a redacted version.
  • If the government refuses to turn over evidence or to provide a non-privileged substitute ordered by the court, the court will resolve the relevant issue of fact or law against the government.


Section 4055:  Allows the court to dismiss cases on state secrets grounds.

  • If the court finds that evidence is protected by the privilege and that it’s impossible to create a non-privileged substitute, the court may dismiss a claim if it determines that the inability to use the privileged evidence would make it difficult for a party to make out a valid defense. 


Section 4056:  Interlocutory appeal

  • Allows parties an expedited appeal of any court order under the Act (e.g., an order to disclose certain evidence), which ensures a timely additional layer of review.


Section 4057:  Security procedures

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


Section 4058:  Reporting

  • Requires the Attorney General to report 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 and the evidence.


Section 4059:  Rule of construction

  • Clarifies that the Act shall apply to any civil case pending on or after the date of its enactment.


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