[Congressional Record: March 13, 2008 (Extensions)]
[Page E392]
INTRODUCTION OF THE STATE SECRET PROTECTION ACT OF 2008 PROTECTING
NATIONAL SECURITY AND THE RULE OF LAW THROUGH SAFE, FAIR, AND
RESPONSIBLE PROCEDURES AND STANDARDS
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HON. JERROLD NADLER
of new york
in the house of representatives
Thursday, March 13, 2008
Mr. NADLER. Madam Speaker, the state secrets privilege is a common
law doctrine that allows the Government to protect sensitive national
security information from harmful disclosure in litigation.
This privilege was first recognized by the U.S. Supreme Court in the
1953 case of U.S. v. Reynolds, a case brought by the widows of three
civilian engineers against the U.S. Government for negligence in a
military airplane crash. The Government refused to produce an accident
report of the crash, claiming that disclosure of the report would
reveal secret military information harmful to national security. The
Court accepted the Government's state secret claim and allowed the
Government to withhold the report without ever reviewing it. When the
report was discovered through an internet search 50 years later, it did
not reveal any secret military information but, instead, showed the
Government's negligence in the crash.
Unfortunately, Reynolds is not the only instance where the secrecy
claims have been abused. Exaggerated claims of national security were
made in an effort to conceal information about U.S. conduct in Vietnam
and the bombing of Cambodia in the ``Pentagon Papers'' case and to
prevent prosecution for the unlawful sale of arms to Iran and the
funneling of proceeds from those sales to the Nicaraguan Contras. In
the ``Pentagon Papers'' case, N.Y. Times Co. v. United States, 403 U.S.
713, Solicitor General Griswold warned the Supreme Court that
publication of the information would pose a ``grave and immediate
danger to the security of the United States.'' Eighteen years later, he
acknowledged that he had never seen ``any trace of a threat to the
national security'' from publication of the information and that
``there is very rarely any real risk to current national security from
the publication of facts relating to transactions in the past, even the
fairly recent past.''
What these examples teach is that when a government is allowed to
escape accountability by hiding behind unexamined claims of national
security, it often will, making judicial oversight of state secrets
privilege claim critical to our constitutional system of checks and
balances. Unfortunately, in the years following Reynolds, courts have
proven reluctant to test Government claims of secrecy, often failing to
examine evidence independently and accepting the Government's secrecy
claim at face value.
Concerns about the lack of judicial oversight of the state secrets
privilege have increased as the current administration has responded to
cases challenging the most troubling aspects of its `` war on
terror''--including rendition, torture, and warrantless wiretapping--
with blanket claims that these cases must be dismissed outright, before
any discovery can proceed. As a result, injured plaintiffs have been
denied justice and the courts have failed to address fundamental
questions of constitutional rights. Take, for example, the case of
Khaled el-Masri, a German citizen who was kidnapped, rendered to a CIA
black site, and tortured before the administration realized that it had
the wrong man. There is extensive public evidence supporting Mr. El-
Masri's case, including a Council of Europe report verifying the
accuracy of Mr. El-Masri's claims and the administration's public
disclosure and defense of the rendition and interrogation of terror
suspects as a valuable tool in its ``war on terror.'' Yet the
administration successfully argued that Mr. El-Masri's case should be
dismissed before any discovery could occur based on the state secret
privilege.
The transformation of a governmental privilege to withhold specific
items of evidence into a claim of absolute immunity, and the overall
lack of consistency in how courts handle state secret claims, requires
Congressional reform. In 1980, Congress enacted the Classified
Information Procedures Act--known as CIPA--to provide courts with clear
statutory guidance on handling secret evidence in criminal cases.
Congress also authorized courts to review and rule upon sensitive
materials under the Freedom of Information Act and the Foreign
Intelligence Surveillance Act. For the past several decades, courts
have effectively and safely applied these laws--under the procedures
and standards articulated by Congress--to protect sensitive information
while also respecting the rule of law and providing fairness and
justice to litigants.
It is time to enact procedures and standards for civil cases similar
to those that we already have provided for criminal cases. Many have
called for this reform, including the American Bar Association, which
recently issued a report calling upon Congress to enact procedures and
standards that promote meaningful, independent judicial review and
``bring uniformity to a significant issue on which courts have adopted
divergent approaches.'' The bipartisan Constitution Project has
similarly urged us to ``craft statutory language to clarify that
judges, not the executive branch, have the final say about whether
disputed evidence is subject to the state secret privilege,'' reminding
us that ``reforms are critical to ensure the independence of our
judiciary and to provide a necessary check on executive power.''
In a recent hearing held by the Judiciary Committee's Subcommittee on
Constitution, Civil Rights, and Civil Liberties, which I chair, experts
like retired Federal judges Patricia Wald and William Webster supported
legislative efforts to require independent judicial review. According
to Judge Webster:
``As a former Director of the FBI and Director of the CIA, I fully
understand and support our government's need to protect sensitive
national security information. However, as a former federal judge, I
can also confirm that judges can and should be trusted with sensitive
information and that they are fully competent to perform an independent
review of executive branch assertions of the state secrets privilege.
Judges are well-qualified to review evidence purportedly subject to the
privilege and make appropriate decisions as to whether disclosure of
such information is likely to harm our national security.''
The State Secret Protection Act of 2008 provides much-needed reform
by establishing rules and standards for determining state secret
privilege claims. The act will strengthen national security by ensuring
that legitimate secrets are protected from harmful disclosure, and it
will strengthen the rule of law by preventing abuse of the privilege
and maximizing the ability of litigants to achieve justice in court.
Modeled on CIPA, but adjusted for civil litigation, the State Secret
Protection Act provides for secure judicial proceedings and other
safeguards to protect valid state secrets. Under the act, a judge may
not blindly rely upon assertions of secrecy and harm contained in an
official's affidavit. Judges must review the information that the
Government seeks to protect, along with any other evidence or argument
relevant to the claim, to determine whether the harm identified by the
Government is reasonably likely to occur. Where this standard is met, a
judge may not order disclosure of the information. The judge must,
however, consider whether a non-privileged substitute can be created
that would allow the litigation to continue.
If a substitute is possible--for example, a redacted version of a
document or a summary of the information--the government has the choice
of producing the substitute or having the court resolve the issue to
which the evidence is relevant against it, as happens in CIPA. Where
there is no possible substitute, the judge may issue appropriate
orders, including dismissing a claim or finding for or against a party
on a factual or legal issue. The act allows the Government to raise a
claim of privilege to avoid answering allegations in a complaint but
prevents premature dismissal of claims before all issues of privilege
are resolved and the parties have the opportunity to conduct non-
privileged discovery.
Through these procedures and standards, the act allows parties the
opportunity to make a preliminary case and provides courts with the
flexibility to craft solutions that protect valid state secrets from
harmful and serve the interests of justice. Congress has clear
constitutional authority to establish rules of procedure and evidence
for the courts, and reform of the state secrets privilege in civil
litigation is long overdue. I urge all of you, my colleagues in the
House, to join us in this important effort.
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