[Infowarrior] - Senate Report Scrutinizes the State Secrets Privilege

[Richard Forno]

Senate Report Scrutinizes the State Secrets Privilege 	

http://www.fas.org/blog/secrecy/2008/08/state_secrets.html

http://www.fas.org/blog/secrecy/?p=1871

A new report from the Senate Judiciary Committee examines the use of  
the state secrets privilege by the executive branch and describes the  
intent of new legislation to strengthen judicial review of its use in  
civil litigation.

The 53 page report summarizes the latest legal scholarship on the  
state secrets privilege, as well as the controversy that has  
surrounded it.

“In recent years, the executive branch has asserted the privilege more  
frequently and broadly than before, typically to seek dismissal of  
lawsuits at the pleadings stage. Facing allegations of unlawful  
Government conduct ranging from domestic warrantless surveillance, to  
employment discrimination, to retaliation against whistleblowers, to  
torture and ‘extraordinary rendition,’ the Bush-Cheney administration  
has invoked the privilege in an effort to shut down civil suits  
against both Government officials and private parties. Courts have  
largely acquiesced,” the report states.

“While there is some debate over the extent to which this represents a  
quantitative or qualitative break from past practice, ‘[w]hat is  
undebatable … is that the privilege is currently being invoked as  
grounds for dismissal of entire categories of cases challenging the  
constitutionality of Government action,’ and that a strong public  
perception has emerged that sees the privilege as a tool for Executive  
abuse.”

“In response to the growing concerns about the state secrets  
privilege, Senator Kennedy, Senator Specter, and Senator Leahy  
introduced the State Secrets Protection Act to provide a systematic  
approach to the privilege and thereby bring stability, predictability,  
and clarity to this area of the law and restore the public trust in  
Government and the courts.”

The new report includes dissenting views from several Republican  
members of the Judiciary Committee, who argue that the existing  
arrangements already strike the “right balance between openness,  
justice and national security.” See “State Secrets Protection Act,”  
Senate Judiciary Committee Report 110-442, August 1.

Another new report from the Senate Judiciary Committee addresses court- 
ordered secrecy, and would limit judicial authority to seal court  
records pertaining to public health and safety. The report describes  
pending legislation that “requires judges to consider the public’s  
interest in disclosure of health and safety information before issuing  
a protective order or an order to seal court records or a settlement  
agreement.” See “Sunshine in Litigation Act,” Senate Judiciary  
Committee Report 110-439, August 1.