The State Secrets Protection Act

The ACLU welcomes a bill introduced by Ted Kennedy that will, supposedly, make it easier to challenge executive branch claims of "state secrets" to cover its legal ass. From its press release:

Senator Kennedy's bill allows the court to review government national security claims, thus lowering the wall of the current state secrets privilege to just a hurdle. The current form of the privilege has allowed the administration to successfully hold off investigations into its extraordinary rendition program and its warrantless wiretapping program. The cloak must be lifted and we urge Congress to waste no time in passing Senator Kennedy's bill.

Sen. Kennedy's own explanation, with detailed section-by-section summary, of the bill he introduced with Sen. Arlen Spector (R-Penn.). An excerpt:

In 1980, Congress enacted the Classified Information Procedures Act (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. ……

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've 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's an increasing need for the judiciary and the executive to have clear, fair, and safe rules.

…………….

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 enables the executive branch to avoid publicly revealing evidence if doing so might disclose a state secret. If a court finds that an item of evidence contains a state secret, or cannot be effectively separated from other evidence that contains a state secret, then the evidence is privileged and may not be released for any reason. Secure judicial proceedings and other safeguards that have proven effective under CIPA and the Freedom of Information Act will ensure that the litigation does not reveal sensitive information.

At the same time, the State Secrets Protection Act will prevent the executive branch from using the privilege to deny parties their day in court or shield illegal activity that is not actually sensitive. A recently declassified report shows that the executive branch abused the state secrets privilege in the very Supreme Court case, United States v. Reynolds (1953), that serves as the basis for the privilege today. In Reynolds, an accident report was kept out of court due to the government's claim that it would disclose state secrets. The court never even looked at the report. Now that the report has been made public, we've learned that in fact it contained no state secrets whatever—but it did contain embarrassing information revealing government negligence.

In recent years, federal courts have applied the Reynolds precedent to dismiss numerous cases—on issues ranging from torture, to extraordinary rendition, to warrantless wiretapping—without ever reviewing the evidence.

The full text of the "State Secrets Protection Act" (S. 2533) was not yet up on Thomas.loc.gov on first posting.

Matt Welch from Jan. 2006 on even more ugly aspects of how U.S. v. Reynolds's b.s. precedent has been applied--in one case, to rob an inventor of his rights. Jacob Sullum from Aug 2006 on the Bush administration's overenthusiastic use of "state secret" privilege.