Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee
On “Examining The State Secrets Privilege:
Protecting National Security While Preserving Accountability”
February 13, 2008
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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