by hilzoy
From the NYT:
“President Bush’s excesses in the name of fighting terrorism are legion. To avoid accountability, his 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 courts have been far too willing to go along. In cases involving serious allegations of kidnapping, torture and unlawful domestic eavesdropping, judges have blocked plaintiffs from pursuing their claims without taking a hard look at the government’s basis for invoking the so-called state secrets privilege: its insistence that revealing certain documents or other evidence would endanger the nation’s security.
As a result, victims of serious abuse have been denied justice, fundamental rights have been violated and the constitutional system of checks and balances has been grievously undermined.
Congress — which has allowed itself to be bullied on national security issues for far too long — may now be ready to push back. The House and Senate are developing legislation that would give victims fair access to the courts and make it harder for the government to hide illegal or embarrassing conduct behind such unsupported claims.
Last week, Senator Edward Kennedy, the Massachusetts Democrat, and Arlen Specter, Republican of Pennsylvania, jointly introduced the State Secrets Protection Act. The measure would require judges to examine the actual documents or other evidence for which the state secrets privilege is invoked, rather than relying on government affidavits asserting that the evidence is too sensitive to be publicly disclosed. Senator Patrick Leahy, chairman of the Senate Judiciary Committee and an important supporter of the reform, has scheduled a hearing on the bill for Feb. 13. Representative Jerrold Nadler, Democrat of New York, expects to introduce a similar measure in the House.
Of course, legitimate secrets need to be protected, and the legislation contains safeguards to ensure that.”
The state secrets privilege was invented in 1953. As I understand it, it basically allows the government to argue that a case involves secrets that should not be revealed in a court proceeding, even if they are relevant to it, and even if the case cannot go forward without the secret information. If accepted, the evidence in question might be barred, or (if the case cannot go forward without it) the entire case might be dismissed. Henry Lanman in Slate:
“There is nothing inherently objectionable about the state secrets privilege. It recognizes the reasonable proposition that even simple lawsuits against the government—tort suits, breach of contract claims—can sometimes involve issues that would be genuinely harmful to national security if they saw the light of day. Say, for instance, that a janitor in Los Alamos, N.M., tripped over a box of uranium lying in the hallway in 1943. It would hardly do to have the evidence used in the subsequent slip-and-fall case scuttle the entire Manhattan Project. So, tough though it is on individual plaintiffs, the courts have historically deferred to government claims that some evidence in certain litigation must be shielded as “state secrets.””
What is objectionable about the privilege is that courts often accept the government’s claims that a case would jeopardize state secrets without investigating whether or not those claims are true. This would, of course, be fine if we could trust the government not to abuse this privilege to make cases it finds inconvenient disappear. Needless to say, we can’t. (Ironically enough, the very case in which the state secrets privilege was invented demonstrates this: once the documents involved were declassified, they turned out to to contain any state secrets at all; just evidence of government negligence.)
This administration has used the state secrets privilege much more broadly, and much more often, than its predecessors.
“Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters’ Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it’s asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.”
Recently, the privilege has been used to dismiss cases like that of Khalid el-Masri, whom we abducted and had tortured, and the government has invoked it to dismiss a lawsuit filed by Maher Arar (see also Katherine’s pieces on Arar on this site — click here and start from the bottom.) In both cases, and in others, many of the facts are in the public domain; in Arar’s case, Condoleeza Rice has even managed to sorta kinda admit that we screwed up, while Canada has had a whole formal inquiry. Both cases are, of course, enormously embarrassing to the government, but it’s not at all clear why they could not possibly go forward at all without jeopardizing state secrets, given how much information about them is already public.
This legislation (S. 2533; excerpts below the fold) basically says that if the government invokes the state secrets privilege, it has to provide an explanation of why it is doing so, and the information that it claims the privilege should protect. It then requires the courts to examine this evidence in order to determine whether or not it deserves protection, and allows them to exclude such evidence only if it decides that the government was right to invoke the state secrets privilege. If the government just refuses to turn the information over, then it automatically loses on the point at issue (not necessarily the whole case.) The bill also says that the procedures used to protect classified information in other cases also apply here, and that the courts can craft further rules to protect classified data, though Congress has the right to reject those rules.
In other words: this bill says that instead of just taking the government’s word that state secrets are involved, the courts have to examine the evidence and conclude that they are. It transforms the state secrets privilege from a Get Out Of Jail Free card that the government can use just by waving it around into a claim that the government has to actually justify. It would be one step towards restoring the rule of law, and limiting the power of the Executive to do whatever it wants without having to justify its actions to anyone. I think it’s a very good bill, and I hope that it passes.
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