Will Congress Reign In Bush ‘State Secrets’ Abuses?

Will senators pass a law ensuring that Bush won’t continue to use the ‘state secrets’ privilege ‘as a tool for cover up’? Will Congress Reign In Bush ‘State Secrets’ Abuses?By Cliff Montgomery – Feb. 14th, 2008On January 23rd, 2008, the Congressional Record printed a statement by Senator Edward Kennedy (D-MA) on the importance of passing the “State Secrets Protection Act.” The bill should help ensure a proper oversight of the “state secrets” privilege sometimes cited by the Executive Branch to suppress government information.Kennedy is co-sponsoring the legislation with Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and Senator Arlen Specter (R-PA).Yesterday, the Senate Judiciary Committee held hearings on the bill. Leahy is chairman of the committee, and both Kennedy and Specter are members. Such sponsorship should help the Senate pass the bill.What is the “state secrets” privilege, and why it’s important to have a firm legislative and judicial oversight of this sweeping Executive power, was well described by Kennedy in January.We quote parts of Kennedy’s speech, as printed in the Congressional Record, below:“For years, there has been growing concern about the state secrets privilege. It is a common law privilege that lets the Government protect sensitive national security information from being disclosed as evidence in litigation.”The problem is that…if the privilege is not applied carefully, the Government can use it as a tool for cover up by withholding evidence that is not actually sensitive.”[And] sometimes plaintiffs may need that information to show that their rights were violated.  […]”The privilege was first recognized by the Supreme Court in 1953, and it has been asserted since then by every administration, Republican and Democratic.”Under the Bush administration, however, use of the state secrets privilege has dramatically increased and the harmful consequences of its irregular application by courts have become painfully clear.”Injured plaintiffs have been denied justice, courts have failed to address fundamental questions of constitutional rights and separation of powers, and confusion pervades this area of law.”The Senate debate on reforming the Foreign Intelligence Surveillance Act has become far more difficult than it ought to be because many believe that if courts hear lawsuits against telecommunications companies, the courts will be unable to deal fairly and effectively with the Government’s invocation of the privilege.”Studies show that the Bush administration has raised the privilege in over 25 percent more cases per year than previous administrations, and has sought dismissal in over 90 percent more cases.”As one scholar recently noted, this administration has used the privilege to ‘seek blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs’ related to its war on terrorism, and as a result, the privilege is impairing the ability of Congress and the judiciary to perform their constitutional duty to check executive power.”Another leading scholar recently found that ‘in practical terms, the state secrets privilege never fails.’ Like other commentators, he concluded that ‘the state secrets privilege is the most powerful secrecy privilege available to the president,’ and ‘the people of the United States have suffered needlessly because the law is now a servant to executive claims of national security.'”In 1980, Congress enacted the Classified Information Procedures Act–known as CIPA–to provide Federal courts with clear statutory guidance on handling secret evidence in criminal cases. For almost 30 years, courts have effectively applied that law to make criminal trials fairer and safer.”During that period, Congress has also regulated judicial review of national security materials under the Foreign Intelligence Surveillance Act and the Freedom of Information Act. Because of these laws, Federal judges regularly review and handle highly classified  evidence in many types of cases.”Yet, in civil cases, litigants have been left behind. Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We have failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information.”Because use of the state secrets privilege has escalated in recent years, there is an increasing need for the judiciary and the executive to have clear, fair, and safe rules.”Many have recognized the need for congressional guidance on this issue. […] The bipartisan Constitution Project found that ‘legislative action [on the privilege] is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government.’ […]”The State Secrets Protection Act we are introducing responds to this need by creating a civil version of CIPA. The act provides guidance to the Federal courts in handling assertions of the privilege in civil cases, and it restores checks and balances to this crucial area of law by placing constraints on the application of state secrets doctrine.”The act will strengthen our national security by requiring judges to protect all state secrets from disclosure, and it will strengthen the rule of law by preventing misuse of the privilege and enabling more litigants to achieve justice in court.”Like what you’re reading so far? Then why not order a full year (52 issues) of thee-newsletter for only $15? 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