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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