[Infowarrior] - Senators seek to stymie state secret shenanigans

[Richard Forno]

Senators seek to stymie state secret shenanigans

By Timothy B. Lee | Published: April 25, 2008 - 09:35AM CT

http://arstechnica.com/news.ars/post/20080425-senators-seek-to-stymie-state-
secret-shenanigans.html

The Senate Judiciary Committee yesterday approved legislation that seeks to
clarify the rules governing the disclosure of state secrets in the
courtroom. The bill's chief sponsor, Sen. Edward Kennedy (D-MA), has touted
the legislation as a response to President Bush's aggressive invocation of
the state secret privilege in litigation challenging the conduct of the "war
on terror." The 11-8 vote was almost entirely along party lines, with only
Sen. Arlen Specter (R-PA) breaking ranks to vote in favor of the bill.

The state secrets privilege has been at the heart of the wiretapping cases
that we have covered here at Ars. Back in 2006, the Bush administration
intervened in the Electronic Frontier Foundation's class action lawsuit
against AT&T, arguing that the litigation could not be conducted fairly
because any information about the NSA's "secret room" would be classified.
The administration made the same argument in its effort to stop five state
regulatory agencies from probing telco participation in the NSA programs.
And the government invoked the state secrets doctrine in defending itself
from a lawsuit brought by an Islamic charity that claims it was the target
of an illegal wiretap.

The U.S. Court of Appeals for the Ninth Circuit ruled for the government on
the latter case in November, holding that the pivotal document in the case
was covered by the state secrets privilege. But the decision suggested the
Ninth Circuit wasn't buying the Bush administration's broader claim that the
very existence of the so-called Terrorist Surveillance Program was a state
secret. The Ninth Circuit has yet to rule on the EFF lawsuit.

The Bush administration routinely asserts the state secret privilege in
other civil liberties cases. In a rare setback for the government, a Chicago
judge recently ordered the Department of Homeland Security and the FBI to
reveal whether an individual who had experienced repeated detentions was on
a government watchlist for terrorism suspects, despite government
protestations that the information was classified. But in most cases, the
invocation of the state secret privilege has been sufficient to get lawsuits
thrown out. For example, last October the Supreme Court refused to review a
decision that a man who claims he was tortured by the US government could
not pursue his case without revealing state secrets.

The legislation approved by the Judiciary Committee yesterday seeks to place
limits on the assertion of the state secret privilege by clearly defining
when it can be used and providing specific procedures for courts to follow
in response to assertions of state secrets by the executive branch. Under
the proposal, judges would not be permitted to dismiss a case based on the
state secrets doctrine unless they determine that it would be impossible for
the defendant to fully defend herself without classified information. That
would make it more likely that lawsuits challenging government abuses of
civil liberties would be allowed to go forward.

The legislation gives judges relatively broad discretion to decide which
evidence is a state secret and how best to balance the conflicting demands
of justice, transparency, and national security. Judges are instructed to
work with the government to find a way to allow the case to go forward
without revealing state secrets, and are given several options for doing so.
This may be done by releasing a redacted version of key documents, producing
a summary of key documents that provides information relevant to the
litigation without revealing state secrets, or having the government
stipulate to facts that are proven by classified documents without releasing
the documents themselves.

Judges are allowed to exclude attorneys who lack security clearances, or to
delay proceedings so that key personnel can obtain the necessary clearances.
Alternatively, judges would be permitted to appoint a properly-cleared legal
representative for parties whose other lawyers lacked the required
clearances.

The legislation seems unlikely to become law this year. It still needs to be
approved by the full Senate and then be taken up by the House. If Democratic
leaders manage to complete that process by the fall, Attorney General
Mukasey has suggested that President Bush would veto it. More likely, work
completed this year will lay the foundation for Congress to consider state
secrets reform in the next Congress, when someone else sits at 1600
Pennsylvania Ave.