Today's Article
Will senators pass a
law ensuring that
Bush won't continue
to use the 'state
secrets' privilege 'as
a tool for cover up'?
law ensuring that
Bush won't continue
to use the 'state
secrets' privilege 'as
a tool for cover up'?
The American Spark
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Will Congress Reign In Bush 'State Secrets' Abuses?
By Cliff Montgomery - Feb. 14th, 2008
On 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 the The American Spark
e-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!
By Cliff Montgomery - Feb. 14th, 2008
On 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 the The American Spark
e-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!