Conyers Critical of State Secrets Privilege Use

House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.) critically addressed the use of state secrets by the executive branch to shield its activity from the courts.

The Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties held a legislative hearing today to examine H.R. 984, the "State Secret Protection Act of 2009," a bill co-sponsored by Conyers last Congress which codifies the state secret privilege for civil cases.

This legislation would serve to protect national security by establishing safe, fair, and responsible criteria for handling valid state secrets. It would address the overbroad use of the privilege to seek premature dismissal of entire cases, maximizing the ability of cases to move forward in the judicial process, while bringing uniformity to court handling of executive secrecy claims.

"Time and again, the Bush administration asserted state secrets to create an Executive Branch whose decisions remained secret and unchecked," said Conyers. "President Obama’s public statements about reining in the state secrets privilege are promising. At the same time, however, his administration has continued pressing an aggressive view of the privilege in the courts, adopting many of the arguments perfected by its predecessor."

"In the February case of Mohamed v. Jeppesen, the Obama administration maintained the Bush administration’s sweeping assertion that allegations of rendition and torture involved state secrets and precluded consideration of the case. A few months later, in the Jewel v. NSA case alleging unlawful spying on U.S. citizens, the Obama administration again sought dismissal, arguing that litigating the case would require the harmful disclosure of state secrets.

"These positions are disappointing, and inconsistent with the meaningful change on executive branch usage of the privilege that the president has promised. The courts have a proven track record of balancing weighty concerns related to national security with the need to safeguard individual liberties. The courts have proven that they are capable of handling sensitive information and balancing the weighty constitutional concerns at issue when secret executive conduct threatens individual liberties and rights.

"While I remain encouraged that the president is undertaking a thorough review of the state secrets privilege, the administration should be mindful that Congress has the responsibility and authority to ensure that this privilege is handled appropriately, in a manner that safeguards valid secrets while giving claimants a meaningful opportunity to obtain justice."