[Congressional Record: February 11, 2009 (Senate)]
[Page S2155-S2159]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself, Mr. Specter, Mr. Kennedy, Mr.
Feingold, Mr. Whitehouse, and Mrs. McCaskill):
S. 417. A bill to enact a safe, fair, and responsible state secrets
privilege Act; to the Committee on the Judiciary.
Mr. LEAHY. Mr. President, today, I am introducing the bipartisan
State Secrets Protection Act. I am pleased that Senator Kennedy, who
had so much to do with developing this proposal last Congress is an
original cosponsor of the bill along with Senators Specter, Feingold,
Whitehouse and McCaskill. After a lengthy debate, this bill was
reported by the Judiciary Committee last April.
The State secrets privilege is a common law doctrine that the
Government can claim in court to prevent evidence that could harm
national security from being publicly revealed. During the Bush
administration, the State secrets privilege was used to avoid judicial
review and skirt accountability by ending cases without consideration
of the merits. It was used to stymie litigation at its very inception
in cases alleging egregious Government misconduct, such as
extraordinary rendition and warrantless eavesdropping on the
communications of Americans.
The 2006 case of Khaled El-Masri, who was kidnapped and transported
against his will to Afghanistan, where he was detained and tortured as
part of the Bush administration's extraordinary rendition program, is
one such example. He sued the government alleging unlawful detention
and treatment. A district court judge dismissed the entire lawsuit
after the Government invoked the State secrets privilege, solely on the
basis of an ex parte declaration from the Director of the Central
Intelligence Agency, and despite the fact that the Government had
admitted that the rendition program exists. Mr. El-Masri has no other
remedy. Our justice system is off limits to him, and no judge ever
reviewed any of the actual evidence.
The State secrets privilege serves important goals where properly
invoked. But there are serious consequences for litigants and for the
American public when the privilege is used to terminate litigation
alleging serious Government misconduct. For the aggrieved parties, it
means that the courthouse doors are closed forever regardless of the
severity of their injury. They will never have their day in court. For
the American public, it means less accountability, because there will
be no judicial scrutiny of improper actions of the executive, and no
check or balance.
The State Secrets Protection Act will help guide the courts to
balance the Government's interests in secrecy with accountability and
the rights of citizens to seek judicial redress. The bill does not
restrict the Government's ability to assert the privilege in
appropriate cases. Rather, the bill would allow judges to look at the
actual evidence the Government submits so that they, neutral judges,
rather than self-interested executive branch officials, would render
the ultimate decision whether the State secrets privilege should apply.
This is consistent with the procedure for other privileges recognized
in our courts.
We held a Committee hearing on this issue last year, and the
appropriate use of this privilege remains an area of concern for me and
for the cosponsors of this bill. In light of the pending cases where
this privilege has been invoked, involving issues including torture,
rendition and warrantless wiretapping, we can ill-afford to delay
consideration of this important legislation. I hope all Senators will
join us in supporting this bill.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
placed in the Record, as follows:
S. 417
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``State Secrets Protection
Act''.
SEC. 2. STATE SECRETS PROTECTION.
(a) In General.--Title 28 of the United States Code is
amended by adding after chapter 180, the following:
``CHAPTER 181--STATE SECRETS PROTECTION
``Sec.
``4051. Definitions.
``4052. Rules governing procedures related to this chapter.
``4053. Procedures for answering a complaint.
``4054. Procedures for determining whether evidence is protected from
disclosure by the state secrets privilege.
[[Page S2156]]
``4055. Procedures when evidence protected by the state secrets
privilege is necessary for adjudication of a claim or
counterclaim.
``4056. Interlocutory appeal.
``4057. Security procedures.
``4058. Reporting.
``4059. Rule of construction.
``Sec. 4051. Definitions
``In this chapter--
``(1) the term `evidence' means any document, witness
testimony, discovery response, affidavit, object, or other
material that could be admissible in court under the Federal
Rules of Evidence or discoverable under the Federal Rules of
Civil Procedure; and
``(2) the term `state secret' refers to any information
that, if disclosed publicly, would be reasonably likely to
cause significant harm to the national defense or foreign
relations of the United States.
``Sec. 4052. Rules governing procedures related to this
chapter
``(a) Documents.--A Federal court--
``(1) shall determine which filings, motions, and
affidavits, or portions thereof, submitted under this chapter
shall be submitted ex parte;
``(2) may order a party to provide a redacted,
unclassified, or summary substitute of a filing, motion, or
affidavit to other parties; and
``(3) shall make decisions under this subsection taking
into consideration the interests of justice and national
security.
``(b) Hearings.--
``(1) In camera hearings.--
``(A) In general.--Except as provided in subparagraph (B),
all hearings under this chapter shall be conducted in camera.
``(B) Exception.--A court may not conduct a hearing under
this chapter in camera based on the assertion of the state
secrets privilege if the court determines that the hearing
relates only to a question of law and does not present a risk
of revealing state secrets.
``(2) Ex parte hearings.--A Federal court may conduct
hearings or portions thereof ex parte if the court
determines, following in camera review of the evidence, that
the interests of justice and national security cannot
adequately be protected through the measures described in
subsections (c) and (d).
``(3) Record of hearings.--The court shall preserve the
record of all hearings conducted under this chapter for use
in the event of an appeal. The court shall seal all records
to the extent necessary to protect national security.
``(c) Attorney Security Clearances.--
``(1) In general.--A Federal court shall, at the request of
the United States, limit participation in hearings conducted
under this chapter, or access to motions or affidavits
submitted under this chapter, to attorneys with appropriate
security clearances, if the court determines that limiting
participation in that manner would serve the interests of
national security. The court may also appoint a guardian ad
litem with the necessary security clearances to represent any
party for the purposes of any hearing conducted under this
chapter.
``(2) Stays.--During the pendency of an application for
security clearance by an attorney representing a party in a
hearing conducted under this chapter, the court may suspend
proceedings if the court determines that such a suspension
would serve the interests of justice.
``(3) Court oversight.--If the United States fails to
provide a security clearance necessary to conduct a hearing
under this chapter in a reasonable period of time, the court
may review in camera and ex parte the reasons of the United
States for denying or delaying the clearance to ensure that
the United States is not withholding a security clearance
from a particular attorney or class of attorneys for any
reason other than protection of national security.
``(d) Protective Orders.--A Federal court may issue a
protective order governing any information or evidence
disclosed or discussed at any hearing conducted under this
chapter if the court determines that issuing such an order is
necessary to protect national security.
``(e) Opinions and Orders.--Any opinions or orders issued
under this chapter may be issued under seal or in redacted
versions if, and to the extent that, the court determines
that such measure is necessary to protect national security.
``(f) Special Masters.--A Federal court may appoint a
special master or other independent advisor who holds the
necessary security clearances to assist the court in handling
a matter subject to this chapter.
``Sec. 4053. Procedures for answering a complaint
``(a) Intervention.--The United States may intervene in any
civil action in order to protect information the Government
determines may be subject to the state secrets privilege.
``(b) Impermissible as Grounds for Dismissal Prior to
Hearings.--Except as provided in section 4055, the state
secrets privilege shall not constitute grounds for dismissal
of a case or claim. If a motion to dismiss or for summary
judgment is based in whole or in part on the state secrets
privilege, or may be affected by the assertion of the state
secrets privilege, a ruling on that motion shall be deferred
pending completion of the hearings provided under this
chapter, unless the motion can be granted on grounds
unrelated to, and unaffected by, the assertion of the state
secrets privilege.
``(c) Pleading State Secrets.--In answering a complaint, if
the United States or an officer or agency of the United
States is a party to the litigation, the United States may
plead the state secrets privilege in response to any
allegation in any individual claim or counterclaim if the
admission or denial of that allegation in that individual
claim or counterclaim would itself divulge a state secret to
another party or the public. If the United States has
intervened in a civil action, it may assert the state secrets
privilege in response to any allegation in any individual
claim or counterclaim if the admission or denial by a party
of that allegation in that individual claim or counterclaim
would itself divulge a state secret to another party or the
public. No adverse inference or admission shall be drawn from
a pleading of state secrets in an answer to an item in a
complaint.
``(d) Supporting Affidavit.--In each instance in which the
United States asserts the state secrets privilege in response
to 1 or more claims, it shall provide the court with an
affidavit signed by the head of the executive branch agency
with responsibility for, and control over, the asserted state
secrets explaining the factual basis for the assertion of the
privilege and attesting that personal consideration was given
to the assertion of the privilege. The duties of the head of
an executive branch agency under this subsection may not be
delegated.
``Sec. 4054. Procedures for determining whether evidence is
protected from disclosure by the state secrets privilege
``(a) Asserting the State Secrets Privilege.--The United
States may, in any civil action to which the United States is
a party or in any other civil action before a Federal or
State court, assert the state secrets privilege as a ground
for withholding information or evidence in discovery or for
preventing the disclosure of information through court
filings or through the introduction of evidence.
``(b) Supporting Affidavit.--In each instance in which the
United States asserts the state secrets privilege with
respect to an item of information or evidence, the United
States shall provide the court with an affidavit signed by
the head of the executive branch agency with responsibility
for, and control over, the state secrets involved explaining
the factual basis for the claim of privilege. The United
States shall make public an unclassified version of the
affidavit.
``(c) Hearing.--A Federal court shall conduct a hearing,
consistent with the requirements of section 4052, to examine
the items of evidence that the United States asserts are
subject to the state secrets privilege, as well as any
affidavit submitted by the United States in support of any
assertion of the state secrets privilege, and to determine
the validity of any assertion of the state secrets privilege
made by the United States.
``(d) Review of Evidence.--
``(1) Submission of evidence.--In addition to the affidavit
provided under subsection (b), and except as provided in
paragraph (2) of this subsection, the United States shall
make all evidence the United States claims is subject to the
state secrets privilege available for the court to review,
consistent with the requirements of section 4052, before any
hearing conducted under this section.
``(2) Sampling in certain cases.--If the volume of evidence
the United States asserts is protected by the state secrets
privilege precludes a timely review of each item of evidence,
or the court otherwise determines that a review of all of
that evidence is not feasible, the court may substitute a
sufficient sampling of the evidence if the court determines
that there is no reasonable possibility that review of the
additional evidence would change the determination on the
privilege claim and the evidence reviewed is sufficient to
enable to court to make the determination required under this
section.
``(3) Index of materials.--The United States shall provide
the court with a manageable index of evidence it contends is
subject to the state secrets privilege by formulating a
system of itemizing and indexing that would correlate
statements made in the affidavit provided under subsection
(b) with portions of the evidence the United States asserts
is subject to the state secrets privilege. The index shall be
specific enough to afford the court an adequate foundation to
review the basis of the invocation of the privilege by the
United States.
``(e) Determinations as to Applicability of State Secrets
Privilege.--
``(1) In general.--Except as provided in subsection (d)(2),
as to each item of evidence that the United States asserts is
protected by the state secrets privilege, the court shall
review, consistent with the requirements of section 4052, the
specific item of evidence to determine whether the claim of
the United States is valid. An item of evidence is subject to
the state secrets privilege if it contains a state secret, or
there is no possible means of effectively segregating it from
other evidence that contains a state secret.
``(2) Admissibility and disclosure.--
``(A) Privileged evidence.--If the court agrees that an
item of evidence is subject to the state secrets privilege,
that item shall not be disclosed or admissible as evidence.
``(B) Non-privileged evidence.--If the court determines
that an item of evidence is not subject to the state secrets
privilege, the state secrets privilege does not prohibit the
disclosure of that item to the opposing party or the
admission of that item at trial, subject to the Federal Rules
of Civil Procedure and the Federal Rules of Evidence.
[[Page S2157]]
``(3) Standard of review.--The court shall give substantial
weight to an assertion by the United States relating to why
public disclosure of an item of evidence would be reasonably
likely to cause significant harm to the national defense or
foreign relations of the United States. The court shall weigh
the testimony of a Government expert in the same manner as
the court weighs, and along with, any other expert testimony
in the applicable case.
``(f) Non-Privileged Substitute.--If the court finds that
material evidence is subject to the state secrets privilege
and it is possible to craft a non-privileged substitute for
that privileged material evidence that provides a
substantially equivalent opportunity to litigate the claim or
defense as would that privileged material evidence, the court
shall order the United States to provide such a substitute,
which may consist of--
``(1) a summary of such privileged information;
``(2) a version of the evidence with privileged information
redacted;
``(3) a statement admitting relevant facts that the
privileged information would tend to prove; or
``(4) any other alternative as directed by the court in the
interests of justice and protecting national security.
``(g) Refusal To Provide Non-Privileged Substitute.--In a
suit against the United States or an officer or agent of the
Unites States acting in the official capacity of that officer
or agent, if the court orders the United States to provide a
non-privileged substitute for evidence in accordance with
this section, and the United States fails to comply, the
court shall resolve the disputed issue of fact or law to
which the evidence pertains in the non-government party's
favor.
``Sec. 4055. Procedures when evidence protected by the state
secrets privilege is necessary for adjudication of a claim
or counterclaim
``After reviewing all pertinent evidence, privileged and
non-privileged, a Federal court may dismiss a claim or
counterclaim on the basis of the state secrets privilege only
if the court determines that--
``(1) it is impossible to create for privileged material
evidence a non-privileged substitute under section 4054(f)
that provides a substantially equivalent opportunity to
litigate the claim or counterclaim as would that privileged
material evidence;
``(2) dismissal of the claim or counterclaim would not harm
national security; and
``(3) continuing with litigation of the claim or
counterclaim in the absence of the privileged material
evidence would substantially impair the ability of a party to
pursue a valid defense to the claim or counterclaim.
``Sec. 4056. Interlocutory appeal
``(a) In General.--The courts of appeal shall have
jurisdiction of an appeal by any party from any interlocutory
decision or order of a district court of the United States
under this chapter.
``(b) Appeal.--
``(1) In general.--An appeal taken under this section
either before or during trial shall be expedited by the court
of appeals.
``(2) During trial.--If an appeal is taken during trial,
the district court shall adjourn the trial until the appeal
is resolved and the court of appeals--
``(A) shall hear argument on appeal as expeditiously as
possible after adjournment of the trial by the district
court;
``(B) may dispense with written briefs other than the
supporting materials previously submitted to the trial court;
``(C) shall render its decision as expeditiously as
possible after argument on appeal; and
``(D) may dispense with the issuance of a written opinion
in rendering its decision.
``Sec. 4057. Security procedures
``(a) In General.--The security procedures established
under the Classified Information Procedures Act (18 U.S.C.
App.) by the Chief Justice of the United States for the
protection of classified information shall be used to protect
against unauthorized disclosure of evidence protected by the
state secrets privilege.
``(b) Rules.--The Chief Justice of the United States, in
consultation with the Attorney General, the Director of
National Intelligence, and the Secretary of Defense, may
create additional rules or amend the rules to implement this
chapter and shall submit any such additional rules or
amendments to the Permanent Select Committee on Intelligence
and the Committee on the Judiciary of the House of
Representatives and the Select Committee on Intelligence and
the Committee on the Judiciary of the Senate. Any such rules
or amendments shall become effective 90 days after such
submission, unless Congress provides otherwise. Rules and
amendments shall comply with the letter and spirit of this
chapter, and may include procedures concerning the role of
magistrate judges and special masters in assisting courts in
carrying out this chapter. The rules or amendments under this
subsection may include procedures to ensure that a sufficient
number of attorneys with appropriate security clearances are
available in each of the judicial districts of the United
States to serve as guardians ad litem under section
4052(c)(1).
``Sec. 4058. Reporting
``(a) Assertion of State Secrets Privilege.--
``(1) In general.--The Attorney General shall submit to the
Permanent Select Committee on Intelligence and the Committee
on the Judiciary of the House of Representatives and the
Select Committee on Intelligence and the Committee on the
Judiciary of the Senate a report on any case in which the
United States asserts the state secrets privilege, not later
than 30 calendar days after the date of such assertion.
``(2) Contents.--Each report submitted under this
subsection shall include any affidavit filed in support of
the assertion of the state secrets privilege and the index
required under section 4054(d)(2).
``(3) Evidence.--Upon a request by any member of the
Permanent Select Committee on Intelligence or the Committee
on the Judiciary of the House of Representatives or the
Select Committee on Intelligence or the Committee on the
Judiciary of the Senate, the Attorney General shall provide
to that member any item of evidence relating to which the
United States has asserted the state secrets privilege.
``(4) Protection of information.--An affidavit, index, or
item of evidence provided under this subsection may be
included in a classified annex or provided under any other
appropriate security measures.
``(b) Operation and Effectiveness.--
``(1) In general.--The Attorney General shall deliver to
the committees of Congress described in subsection (a) a
report concerning the operation and effectiveness of this
chapter and including suggested amendments to this chapter.
``(2) Deadline.--The Attorney General shall submit a report
under paragraph (1) not later than 1 year after the date of
enactment of this chapter, and every year there after until
the date that is 3 years after that date of enactment. After
the date that is 3 years after that date of enactment, the
Attorney General shall submit a report under paragraph (1) as
necessary.
``Sec. 4059. Rule of construction
``Nothing in this chapter--
``(1) is intended to supersede any further or additional
limit on the state secrets privilege under any other
provision of law; or
``(2) may be construed to preclude a court from dismissing
a claim or counterclaim or entering judgment on grounds
unrelated to, and unaffected by, the assertion of the state
secrets privilege.''.
(b) Technical and Conforming Amendment.--The table of
chapters for part VI of title 28, United States Code, is
amended by adding at the end the following:
181. State secrets protection..................................4051....
SEC. 3. SEVERABILITY.
If any provision of this Act, any amendment made by the
Act, or the application of such provision or amendment to any
person or circumstances is held to be invalid, the remainder
of this Act, the amendments made by the Act, and the
application of such provisions to persons or circumstances
other than those to which it is held invalid, shall not be
affected thereby.
SEC. 4. APPLICATION TO PENDING CASES.
The amendments made by this Act shall apply to any civil
case pending on or after the date of enactment of this Act.
Mr. FEINGOLD. Mr. President, I am proud to join Senators Leahy,
Specter, and Kennedy in introducing the State Secrets Protection Act of
2009. This bill establishes uniform procedures for courts to use when
evaluating governmental assertions of the state secrets privilege in
civil litigation. It takes an important step toward restoring the rule
of law by ensuring that the privilege will be used only to protect true
state secrets, and not as a means for the Government to avoid
accountability for its actions.
In a democracy, the public should have the right to know what its
government is doing. That should be the rule, and secrecy should be the
rare exception, reserved for the very few cases in which the national
security is truly at stake. Unfortunately, the Bush administration
stood that presumption on its head, cloaking its actions in secrecy
whenever possible and grudgingly submitting to public scrutiny only
when it couldn't be avoided. The ``state secrets'' privilege was a
favorite weapon in that administration's arsenal of secrecy.
None of us disputes that information may properly be withheld as a
``state secret'' when disclosing the information would cause grave
damage to national security. The problem arises when the privilege is
abused and invoked to shield Government wrongdoing. Indeed, that is
exactly what happened the first time the Supreme Court recognized the
privilege in 1953, in the case of United States v. Reynolds. The
Government had been sued after a military aircraft crash killed nine
people, and it invoked the ``state secrets'' privilege to shield an
internal investigative report. Decades later, when the report was
declassified, it revealed nothing that could fairly be characterized as
a ``state secret'' but it did reveal faulty maintenance of the
aircraft.
Abuses like these can be prevented, but only if the courts fulfill
their responsibility to carefully review claims
[[Page S2158]]
of privilege. In the Reynolds case, no court actually looked at the
supposedly privileged report. That simple step would have prevented the
miscarriage of justice that ensued. Yet, despite the fact that courts
have the acknowledged authority to order in camera review of the
evidence, fewer than one third of courts have actually exercised that
option when the Government has asserted the ``state secrets''
privilege. And a host of other tools available to the courts to
evaluate and respond to claims of privilege have been employed
inconsistently at best, resulting in a confused body of case law that
preserves accountability in some cases while granting the government a
``get out of jail free'' card in others.
In the last Congress, Senators Kennedy, Specter, and Leahy introduced
the State Secrets Protection Act to standardize the procedures courts
use in cases where the Government asserts the ``state secrets''
privilege and to ensure adequate scrutiny of such claims. The bill was
reported by the Judiciary Committee last April after extensive debate.
Much of the credit for this legislation goes to Senator Kennedy, whose
unfailing commitment to the rule of law inspired both the concept and
the particulars of this bill. I had the honor of working with him to
develop this legislation, and it is a pleasure now to cosponsor its
reintroduction, with Senator Leahy as the lead sponsor.
The bill makes use of existing tools that are available to the courts
when handling national security information. Perhaps the most
fundamental of these is in camera review of the allegedly privileged
evidence, which the bill requires. The idea here is simple: Determining
what information the evidence contains is the threshold step in
determining whether that evidence is privileged. This step is far too
important to be left to a party with a built-in conflict of interest.
Just as a court would never accept a private litigant's description of
his or her evidence in lieu of the evidence itself, the court should
not rely solely on the Government's description of the evidence when
the Government has a clear interest in the outcome of the case.
That courts may examine sensitive national security information in
camera is beyond any serious dispute. Since 1974, the Freedom of
Information Act has allowed courts to engage in in camera review of any
records that the Government claims are exempt from disclosure under the
Act. Courts have also reviewed the most sensitive national security
information in criminal cases, pursuant to the Classified Information
Procedures Act. In fact, courts handle highly classified information on
a regular basis. There is no legitimate justification for skipping this
crucial step.
The bill also requires courts to hold in camera hearings on the
question of whether the evidence is privileged. Based on the court's
previous review of the evidence, the court may conduct the hearing ex
parte i.e., without any participation by the plaintiff or the
plaintiff's lawyers but only if the court finds that national security
cannot adequately be protected through other means. For example, the
court may limit attendance at the hearing to attorneys with the
requisite clearances, or the court may appoint a guardian ad litem to
represent the plaintiff's interests at the hearing. The bill thus
preserves the adversarial process to the maximum extent consistent with
protecting national security.
That's important, for at least two reasons. First, our justice system
is premised on the notion of fairness, and that principle of fairness
is undermined any time a party to litigation is excluded from the
proceedings. But fairness isn't the only principle at stake. For all
its complications and occasional inefficiencies, the adversarial
process remains the best system for getting to the truth. If only one
party is present at the hearing, the court is more likely to reach the
wrong result it's as simple as that.
Taken together, the requirements of in camera review of the evidence
and an in camera hearing ensure that the Government's claim of
privilege is evaluated fairly and thoroughly. A fair, thorough review
is necessary, because the bill makes absolutely clear that once
evidence is found to be privileged, it cannot be disclosed, however
great the plaintiff's need for the evidence may be. The interest of
national security, once the court determines that interest is truly at
stake, is given absolute protection.
That may mean the end of the lawsuit but it may not. As Congress
recognized when it passed the Classified Information Procedures Act,
courts have many tools at their disposal to move litigation forward
even when some of the evidence cannot be disclosed. For example, courts
can require the Government to submit non-privileged substitutes for the
privileged evidence, such as summaries of the evidence, redacted
versions, or admissions of certain facts. Under the bill, where the
court finds that it would be feasible for the Government to craft a
non-privileged substitute for privileged evidence, it may order the
Government to do so. Again, however, the court can never compel the
production of privileged evidence. If the Government refuses to craft a
non-privileged substitute, the remedy is the same one that exists in
the CIPA: the court may resolve the relevant issue of fact or law
against the Government.
The bill does not allow courts to dismiss lawsuits at the pleadings
stage based on a claim of ``subject matter privilege.'' As the Fourth
Circuit has explained, ``subject matter privilege'' applies if the case
is so pervaded with state secrets, it would be impossible to conduct
the lawsuit without revealing them. Such cases undoubtedly exist. But
until all of the relevant evidence is identified and the privilege
determinations are made, any conclusion that a case will be pervaded
with state secrets is simply a prediction. Only by proceeding through
discovery and pre-trial hearings can that prediction be replaced with
certainty. And this can be done without revealing a single state
secret, since the bill allows privilege determinations to be made in
camera and ex parte.
The bill does not change the ordinary rules of summary judgment. If a
court determines, after discovery and pre-trial hearings are completed,
that the key evidence is privileged and the plaintiff cannot prove his
or her case using non-privileged evidence, then the Government may move
for summary judgment and prevail. The bill thus retains the concept of
``subject matter privilege'' it simply requires a more thorough testing
of the claim.
Nor does the bill ever put the Government to the ``Hobson's choice''
of either revealing privileged evidence or conceding the lawsuit. Under
the bill, even if the plaintiff has made out a prima facie case, the
court can and must dismiss the lawsuit if the Government would need to
disclose privileged evidence in order to present a valid defense. The
Government's interests, as well as the national security, are thus
scrupulously protected.
Finally, the bill facilitates congressional oversight by requiring
the executive branch to share with the Judiciary and Intelligence
Committees the documents it makes available to the courts: the
Government affidavit explaining why the evidence is privileged, the
index of privileged evidence, and, where requested, the evidence
itself. This information will help Congress monitor the Government's
use of the privilege and assess the need for any further legislation.
Perhaps even more important, it will provide a means of
accountability in those cases where the privilege prevents a court from
ruling on allegations of Government wrongdoing. The idea of simply
letting such allegations go unaddressed should be profoundly troubling
to anyone who respects the rule of law yet for eight years, the
response of the Bush administration was little more than a shrug. This
bill rejects such a cavalier attitude toward the rule of law. The
citizens of this country should never again be told that there is
simply no remedy for wrongs their Government has committed. In cases
where the courts cannot provide that remedy, then Congress should step
in and providing the necessary information to the relevant committees
of Congress will enable that to happen.
I am pleased that both the new Attorney General, Eric Holder, and the
nominee for Associate Attorney General, Thomas Perrelli, have indicated
a willingness to review this bill and work with us on it. I hope that
it will be possible to fashion legislation that the Administration can
support. The public
[[Page S2159]]
deserves to have confidence that the state secrets privilege is not
going to be used to cover up Government misconduct. This bill provides
the courts a system for resolving claims of privilege that will inspire
that confidence.
A country where the Government need not answer to allegations of
wrongdoing is a country that has strayed dangerously far from the rule
of law. We must ensure that the ``state secrets'' privilege does not
become a license for the Government to evade the laws that we pass.
This bill accomplishes that goal, while simultaneously providing the
strongest of protections to those items of evidence that truly qualify
as state secrets. I urge all of my colleagues to support the rule of
law by supporting this legislation.
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