‘State Secrets’ May Hide Impeachable Conduct, Says Judiciary Chairman

Rep. Conyers (D-MI) stated that ‘if not properly policed, the privilege might be misused to conceal…downright illegal activity, maybe impeachable conduct.’ ‘State Secrets’ May Hide Impeachable Conduct, Says Judiciary ChairmanBy Cliff Montgomery – June 28th, 2008On January 29th, House Judiciary Committee Chairman John Conyers (D-MI), submitted a fiery statement to a subcommittee panel hearing which discussed “Reform of the State Secrets Privilege.”The “State Secrets Privilege” is a White House doctrine that it may, at its own whim, withhold media from all U.S. courts under the argument that such oversight of data would constitute a danger to the United States.But, as Conyers stated during the January hearing, “if not properly policed, the privilege might be misused to conceal not just embarrassing information, but downright illegal activity, maybe impeachable conduct, and that the public disclosure, in fact, may not pose any genuine threat to national security.”The text of the panel hearing recently was published.We therefore print the written portion of Rep. Conyers’ statement below:                     “Today we examine the state secret privilege, a common law doctrine that allows the government to protect sensitive national security information from harmful disclosure in litigation.”Since it was first recognized by the U.S. Supreme Court in the 1953 case of U.S. v. Reynolds, this privilege has been used by Democratic and Republican Administrations alike, often generating concern that–if not properly policed–the privilege might be misused to conceal embarrassing information whose public disclosure poses no genuine threat to national security.”These concerns have increased because of the Bush Administration’s repeated use of the privilege, in the wake of the September 11th terrorist attacks, as a tool to dismiss cases challenging some of the most troubling aspects of its war on terror–including rendition, torture, and warrantless wiretapping.”When the Executive Branch responds to serious allegations of misconduct with blanket claims of secrecy–often telling federal judges that material is too sensitive for even the courts to see–there is understandable concern that the Executive may be using those claims as a subterfuge to shield embarrassing facts or unlawful conduct from judicial discovery.”This hearing will help us explore three important issues presented by the state secret privilege.”First, we need to determine whether judges are using procedures and standards that allow for meaningful review of governmental claims. Some in the civil liberties community are concerned that the courts are being overly deferential to the Executive Branch, reluctant to review evidence and make their own independent assessment of whether the secrecy claim is valid.  “Second, the hearing will help us examine whether there is any validity to continuing concerns about judicial expertise in handling secret information. In the fifty years since the Reynolds decision, numerous laws have been enacted that require the courts to review national security materials. These include the Classified Information Procedures Act, the Freedom of Information Act, and the Foreign Intelligence Surveillance Act.  “Acting under this authority, courts routinely review classified evidence under procedures that are designed to protect against harmful disclosure of sensitive information, while still providing a fair opportunity for litigants who seek justice and accountability from our government.  “And, third, today’s hearing provides an opportunity for us to consider whether there is any need for congressional action. The American Bar Association, for example, recommends that there should be clear procedures and standards for state secret claims. Likewise, the bipartisan Constitution Project urges that courts be required to review the claims and ensure that cases are not dismissed prematurely..”These organizations want to ensure that parties have a full and fair opportunity to discover non-privileged facts, and that appropriate orders are issued to protect material determined to be subject to the privilege.  “This Administration’s aggressive efforts to create an Imperial Presidency–an Executive Branch whose decisions remain secret and unchecked by Congress or the courts–raises important concerns about how claims of secrecy may impair our constitutional system of checks and balances.  “Our firm commitment to respect for the rule of law requires that we take these concerns seriously.”Postscript: In one Illinois case, Judge Sidney Schenkier recently did what others on the federal bench often refuse to do: He critically examined the very basis of a “state secrets” privilege claim.Schenkier held both an “in camera” review and hearings on data that the Bush Administration claimed were off-limits from judicial oversight, thanks to the “state secrets” privilege.The result? The judge rejected a number of White House privilege claims, but upheld some others, in an April ruling regarding the case of M. Afikur Rahman vs. Michael Chertoff.Yet none of those secrets ever left the courtroom, and America has not fallen.Like what you’re reading so far? Then why not order a full year (52 issues) of thee-newsletter for only $15? A major article covering an story not being told in the Corporate Press will be delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!