Secrecy News

At a House Judiciary Subcommittee hearing today, witnesses discussed the feasibility and advisability of legislating reforms to the state secrets privilege.

The state secrets privilege has been used by the executive branch to block discovery in civil litigation when the government believes that there is an unacceptable risk of disclosure of sensitive national security secrets. But on several occasions, the mere assertion of the privilege has led to termination of the lawsuit. It has effectively short-circuited the adjudication of claims against the government involving domestic surveillance, unlawful detention, and torture.

“I do believe thoughtful legislation is needed to insure that maximum and uniform efforts are made to strike the right balance between national security needs and fair judicial proceedings,” said the Hon. Patricia M. Wald, the retired chief judge of the DC Circuit Court of Appeals in testimony today.

Legislative intervention was also endorsed by H. Thomas Wells, Jr. (pdf), the president-elect of the American Bar Association, and by Kevin Bankston (pdf) of the Electronic Frontier Foundation, whose lawsuit on warrantless domestic surveillance has prompted state secrets claims by the government.

Patrick Philbin, a former deputy attorney general, argued (pdf) that any legislative proposal to permit judges to overrule the executive branch regarding the sensitivity of particular information “would be a mistake.”

The prepared statements from today’s hearing are posted here.

Last week, Senators Kennedy, Specter and Leahy introduced “The State Secrets Protection Act.” The text of that legislation is now available here.

This entry was posted on Tuesday, January 29th, 2008 at 1:59 pm and is filed under Secrecy. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

The growing use of the state secrets privilege could threaten basic constitutional rights, according to one recent critical analysis.

If current trends in government reliance on the state secrets privilege are allowed to continue, “it is questionable whether any constitutional complaint against the government involving classified information will ever be allowed to be adjudicated,” concluded Carrie Newton Lyons in a review published last year.

Ms. Lyons, a former CIA operations officer, presented her assessment in “The State Secrets Privilege: Expanding Its Scope Through Government Misuse” (pdf), Lewis & Clark Law Review, Volume 11, No. 1, Spring 2007.

Potential reforms to the state secrets privilege will be explored by Louis Fisher of the Law Library of Congress and other experts in a January 24 panel discussion sponsored by the Constitution Project.

This entry was posted on Monday, January 14th, 2008 at 11:23 am and is filed under Secrecy. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.