02.11.09

Leahy, Specter, Feingold, Kennedy Introduce State Secrets Legislation

WASHINGTON (Wednesday, Feb. 11, 2009) – Leading members of the Senate Judiciary Committee have joined together to introduce the State Secrets Protection Act, a bill that provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege.  Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), Ranking Member Arlen Specter (R-Pa.), and Committee Member Russ Feingold (D-Wis.) joined with former Committee Chairman and Member Edward Kennedy (D-Ma.) to introduce the bill Wednesday.

The legislation was initially proposed in the 110th Congress in response to the government’s assertions of the state secrets privilege in cases challenging the constitutionally of several of the Bush administration’s national security programs, including the warrantless wiretapping, rendition and interrogation programs.   

Leahy said, “The State Secrets Protection Act will 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.  In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation.  I hope all Senators will join us in supporting this bill.”

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 Specter said.  “This bipartisan legislation provides guidance to the federal courts in handling assertions of the privilege.  It is designed to protect state secrets from disclosure, while preventing misuse of the privilege and enabling litigants to achieve justice in court, regardless of which party occupies the White House.” 

Feingold said, “A country where the government need not answer to allegations of wrongdoing is a country that has strayed dangerously far from the rule of law.  We must ensure that the state secrets privilege does not become a license for the government to evade the laws that we pass.  This bill accomplishes that goal, while simultaneously providing the strongest of protections to those items of evidence that truly qualify as state secrets.”   

Senator Sheldon Whitehouse (D-R.I.) and Senator Claire McCaskill (D-Mo.) are also cosponsors of the legislation.  The Leahy-Specter-Feingold-Kennedy legislation would: 

  • Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
  • Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters
  • Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits
  • Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense
  • Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely
  • Establish security procedures to ensure that secrets are not leaked during litigation, including closed hearings, security clearance requirements, sealed orders, and expedited appeals
  • Establish congressional reporting requirements
  • Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution

The legislation was first introduced in January 2008, and was ordered reported by the Senate Judiciary Committee in April 2008.  A Committee report was filed with the legislation.  Leahy’s full statement on the introduction of the State Secrets Act follows. 

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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
Introduction Of the State Secrets Protection Act
February 11, 2009

Today, I am introducing the bipartisan State Secrets Protection Act.  I am pleased that Senator Kennedy, who had so much to do with developing this proposal last Congress is an original cosponsor of the bill along with Senators Specter, Feingold, Whitehouse and McCaskill.  After a lengthy debate, this bill was reported by the Judiciary Committee last April. 

The state secrets privilege is a common law doctrine that the Government can claim in court to prevent evidence that could harm national security from being publicly revealed.  During the Bush administration, the state secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits.  It was used to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of Americans. 

The 2006 case of Khaled El-Masri, who was kidnapped and transported against his will to Afghanistan, where he was detained and tortured as part of the Bush administration’s extraordinary rendition program, is one such example.  He sued the government alleging unlawful detention and treatment.  A district court judge dismissed the entire lawsuit after the Government invoked the state secrets privilege, solely on the basis of an ex parte declaration from the Director of the Central Intelligence Agency (CIA), and despite the fact that the Government had 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 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. 

The State Secrets Protection Act will 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 the Government submits 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. 

We held a Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation.  I hope all Senators will join us in supporting this bill.

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