Congress

The State Secrets Protection Act

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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.

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  1. I really don’t like Ted Kennedy or Arlen Spector.

    This looks good to me though. I don’t trust the executive branch enough to let them be the sole authority on what secrets are national security justified.

  2. But isn’t the purpose of this bill to “un-protect” state secrets?

  3. Kolohe,

    I don’t think the purpose is to “un-protect” state secrets. If something truly is a state secrete, it will remain secret. But this bill would give a judge the opportunity to examine evidence that the executive branch says is a state secret, and if the judge decides the executive branch is full of shit, to allow the evidence to be presented in court.

  4. Unfortunately, since this is a statute, it needs to get by a presidential veto. Not to mention that people like John Yoo et al. will just tell future presidents that it is unconstitutional. An actual amendment is necessary first, something to the effect of:

    1. Neither the President, nor any officer of the United States, shall assert any privilege against testifying or presenting evidence in a proceeding before a house of Congress, nor before the Supreme Court or any inferior court established pursuant to Article III, except in accordance with such statutes as Congress may enact setting forth the circumstances under which the President and officers of the United States may invoke such privileges.

    2. Legislation enacted in accordance with Section 1 shall be narrowly construed.

  5. “this bill would give a judge the opportunity to examine evidence that the executive branch says is a state secret, and if the judge decides the executive branch is full of shit, to allow the evidence to be presented in court.”

    Not to be a dicker, but wouldn’t letting a judge see the thing mean its not a secret anymore?

    The Operative: Secrets are not my concern. Keeping them is.

  6. Pretty good for a guy known for keeping secrets!

  7. I meant, of course, Teddy, not Lamar.

  8. If Ted Kennedy is an expert at keeping secrets, then my tag is Ramal.

  9. Fair enough. I meant exactly why he dunnit. But then again, I haven’t kept up with the latest updates in the evolving story.

    Remember the joke about how William Kennedy Smith got girls into his car? “Do what I say or I’ll ask my uncle to drive you home.”

  10. I assumed as much, I just been waitin’ to introduce bizarro-world Lamar, and it’s late.

  11. You know, I’m not a radical on classified materials. I’m not an absolutist or a hard-liner, like some libertarians.

    All I want, when the executive branch wants to assert some big power, is for a court to take a look and make sure they’re not going off the rails. Make sure they’re not using the power for some corrupt purpose, or violating anybody’s constitutional rights – just have somebody providing some oversight, some neutral party signing off that the power isn’t being abused?

    Is that so much? Is this really what we’ve come to that what I just wrote is a controversial position?

    Thank you, Senator. Let’s hope the bill isn’t filibustered by your opponents.

  12. “But isn’t the purpose of this bill to “un-protect” state secrets?”

    I have to ask. Do you think the patriot act actually has anything to do with patriotism?

  13. joe,

    Or torpedoed by your Majority Leader…

  14. To all the other objections here, add the fact that young Teddy has never objected to excessive executive power, as long as it was exerted by someone in the family.

    Why the fuck does any one take this old fuck fat seriously any more?

  15. The cardinal philosophy of our system of government is that every step of the process is subject to check and balances in order to restrain the natural human tendency toward abuse of power. This is a virtue of our system lost upon the absolutists in our midst. If the legislature or the judiciary is excluded from reviewing executive acts, tyranny will thrive.

  16. ? If the legislature or the judiciary is excluded from reviewing executive acts, tyranny will thrive.
    Here, here, a Duoist. That’s the concept that was established in 1787 and 1789. Haven’t our leaders noticed that they swear to it when taking office?

    Or torpedoed by your Majority Leader ?
    Ditto, crime think. The biggest disappointment in the last year has been seeing the Democrats fail to restore my rights after they took control. Seems they are frightened of voting for any legislation that Republicans can label “soft of terrorism,” lest another attack cost them their jobs. The last terrorist attack on U.S. soil was in the year two thousand fucking one. It’s time for us to get over it and think about getting habeas corpus, et al., back.

    Though I’m not a Teddy Kennedy fan or a liberal, I find the mindless ad hominem crap about him intellectually offensive. He is so ensconced in his Senate seat (no weight jokes, please) that he’s in a position to do something statesmanlike from time to time — such as restoring judicial oversight in FISA.

    And let’s not forget Jack’s point: Dubya’s veto power and signing statements — coupled with Americans’ penchant for wanting to believe in a and be protected from a boogeyman — make anything the Congress does pretty much academic. To borrow a phrase from Lewis Black, between the Bush administration, the spineless Democrats and the USA “PATRIOT” Act, we’re red, white and screwed.

  17. Or torpedoed by your Majority Leader…

    Same thing. Mr. Rubberspine doesn’t torpedo anything unless he’s taking heat from his right.

  18. It’s pathetic how many people make their personal and partisan animosity their top priority here.

    Oh, no, we can’t support this. Don’t you know who’s proposing it?!?

    Great job, “lovers of liberty.”

  19. I think Richard’s points go well together. Ted Kennedy is safely ensconced in his seat, and isn’t afraid to stand up for our rights against the Republican onslaught. “Blue dog” Democrats and the Leader of a 50-1/2% majority, on the other hand, are still trembling that some chickenhawk across the aisle (or in the White House) might call them “soft on terrorism.”

  20. I’m one of those absolutists Joe isn’t a part of, because the entire concept of durable state secrets is an outrage against our Constitutional system of government.

    If the military wants to maintain operational or tactical secrecy for the space of an operation, fine.

    But declaring ongoing functions of our government secret for years or decades at a time is an outrage, for pretty simple and straightforward reasons.

    If I want to sue to challenge the Constitutionality of a government program, I have the absolute right to know everything about that program. If I’m not allowed to know about it, I can’t challenge it, and my civil rights have been removed.

    If I want to run for federal office based on my opposition to a federal program, I have the absolute right to know everything about that program. Our federal elections are effectively void if we aren’t allowed to debate the substance of the policies our representatives are pursuing in front of the electorate.

    The Constitution grants the Congress the right to keep its own proceedings secret, and that’s it. So they can bury their minutes or close a hearing if they want to. I don’t think that’s good either, but that power is right there in Article 3 so I have to accept it. But this entire “Let’s keep 90% of our foreign policy secret so it can’t be debated” crap has got to go.

  21. I don’t support it because it doesn’t go far enough, Joe. Ted Kennedy’s involvement has nothing to do with it.

    I don’t exactly love Russ Feingold or Chris Dodd, but they go to bat for civil liberties and the rule of law every day now, and they have my complete support in their efforts.

  22. Teddy does something right. Amazing. I didn’t think it was possible, but I guess I was wrong.

  23. “Blue dog” Democrats and the Leader of a 50-1/2% majority, on the other hand, are still trembling that some chickenhawk across the aisle (or in the White House) might call them “soft on terrorism.”

    Funny how the GOP had roughly the same type of majority from 2002-06, but managed to ram all the crap they wanted down the minority’s throat. The Senate Democrats might be nice guys and all, but they’re sure as hell worthless for getting stuff done, aren’t they?

    I don’t know if you’ll believe me, joe, but I’m not partisan about this; I support a lot of things that the majority of Dems do and the GOP opposes. I’m just sick of them not being able to get anything done.

  24. “Durable state secrets.” Cool phrase, Fluffy. Is that a euphemism for justification for a police state? Maybe we should ask Darth Chaney, the mastermind of all this.

    By the way ? Fluffy!!!. If you’re not going to pull your punches, you should probably think about changing your screen name.

    FYI, see today’s New York Times editorial on this subject: http://www.nytimes.com/2008/01/26/opinion/26sat1.html?_r=1&ref=opinion&oref=slogin“>

  25. joe –

    This just gives evidence that anybody, even Senators Kennedy and Spector, can get something right once in a while. We agree on this one, but I imagine we’ll both get over it. 😉

    You’re right about how many let personal animosity get in the way of actually thinking about an issue. Some democrats, republicans and evem [gasp!] libertarians often fall into that pit.

  26. Ted Kennedy is safely ensconced in his seat, and isn’t afraid to stand up for our rights against the Republican onslaught.

    Either that or the Democratic leadership had Teddy Kennedy introduce this bill to minimize the chances it would pass.

    Ron Brown was murdered. Flight 287. McVeigh had accomplices, et., etc.

  27. crimethink,

    Funny how the GOP had roughly the same type of majority from 2002-06, but managed to ram all the crap they wanted down the minority’s throat.

    I think the difference is control of the White House, and 30 years of losing elections by being called “soft.”

    You know, Fluffy, you could talk me into agreeing with you about the ideal legal disposition for state secrets, but I”ll take what I can get at this point.

  28. joe-

    They are soft. They’re so soft that they bend effortlessly when Bush exerts pressure.

    Except for the Dodd (peace and blessings upon him).

  29. Dey are duh girly-men!

    Most of them aren’t soft. Just a few, one of whom is the Majority Leader.

    What kind of a dumbass idea was it to elect a leader from a swing state who can barely hold onto his seat?

  30. Everything secret degenerates.

    we have a degenerate government…

  31. What kind of a dumbass idea was it to elect a leader from a swing state who can barely hold onto his seat?

    There are 49 Democrats, 50 is you count Bernie Sanders. We should ask them a few pointed questions.

    When the new majority installs leaders who do whatever the White House tells them to do, a reasonable person might wonder if this new majority isn’t just playing us for fools.

  32. whatever the White House tells them to do

    You mean like expanding SCHIP? Passing a bill with a timeline for withdrawal?

    Let’s not go overboard here.

    It’s mighty convenient to forget, in 2007, that the Democrats have been playing defense on military issues for 40 years, or trying to overcome that by choosing conservatives from red states to be their public face.

  33. And thoreau,

    You keep bringing up this charge that the Democrats are secretly working to advance Bush’s agenda on Iraq, domestic surveillance, or other “national security” issues, but every single time you do, here or on UA, you make a point of couching it in language like “A reasonable person might conclude…” or “Some may say…” or “It makes one wonder…”

    Spit it out; do you actually believe this, or not?

  34. joe, you mean when such forward thinking Democrats like Lester Maddox were still being elected to office?

  35. You’re either with joe or agin’ him?

  36. There are always ways to find out information, “secret” or otherwise.

    Technology has certainly come that far. If the government can illegally spy on the people, the reverse is also true.

  37. Sorry, Alejandro, I don’t know very much about politics before I was born.

  38. joe, when the Dems pass a wiretap bill without immunity and refuse to cave on immunity after the inevitable veto, you can shoot a crow, marinade it, slow roast it, and I will eat it while you watch.

    Deal?

  39. EDIT: When both chambers of the allegedly Democratic-controlled Congress pass a bill without immunity…

  40. If the military wants to maintain operational or tactical secrecy for the space of an operation, fine.

    But declaring ongoing functions of our government secret for years or decades at a time is an outrage, for pretty simple and straightforward reasons.

    But there are good honest reasons where “the space of an operations” could be going on for years or decades.

    Forex: how a government handles comsec is a complex decades long ongoing program that is vital to maintain secure. Walker IMO was far worse than Ames or Hanson, although more people directly died due to each of the latter. I would argue that a significant contribution to the defeat of Germany and Japan was the ability to read their mail (specifically, locating German submarine opareas and knowing that Japan’s actual target was Midway, not the Aleutians at that phase of the war)

  41. thoreau,

    A majority of Democrats will vote against such a bill, probably a large majority.

    Why don’t you actually assign blame to the people who support such a thing?

    PS, the House already passed a bill with no immunity.

  42. Oh, so, deal. Getcha marinade ready.

  43. There is a great article on the conservative ‘blue dog’ democrats by David Sirota called “Blue Dog Democrats: Conservative or just Plain Corrupt”…Need we ask??

  44. We need more open government……..not more secrets

  45. Wait a second, I misread that.

    You’re written it so that if every Democrat in each house votes for such a bill, and then every single Democrat votes to override the veto, you still get to blame the Democrats for it.

    I’m not going to have anything to do with such a farce.

  46. You know what I would do if I actively supported warrantless wiretaps, telecom immunity, and an eternal war in Iraq, in the face of a public that is strongly opposed to all three?

    I’d try to blur the lines between the party whose members are lockstep in favor of those things, and the party whose members oppose them by a landslide majority.

  47. Joe,

    You must understand that Republicans are so corrupt(and their supporters are so such hollow people) that they must continually point out minor problems with a few Democrats(whom I can’t stand) in the face of their overwhelming failure and malfeasence.

  48. James,

    What we’re seeing now is a suppression tactic. They know there is no chance that they can prevail by running on those issues, so the goal is to discourage people who disagree with them for voting for their opponents.

  49. joe,

    I can see you thinking I’m part of a Republican conspiracy — after all, I’m a registered Republican supporting a Republican prez cand for 2008 — but thoreau?

    Let me put it this way: are you happy with the Dem majority’s performance so far? If not, why is everyone who criticizes them a Republican shill?

  50. Shit, I forgot where I was.

    Well, Dondero might respond to me now (joy!).

  51. “are you happy with the Dem majority’s performance so far?”

    No…I don’t think many are, the reason that the approval of congress is so low however is because it is acting too Republican and Republicans in the Senate have blocked Democrats at every turn.

  52. Oh, no, crimethink. I just think the Republicans’ efforts have worked on you and thoreau.

    Am I happy with the majority’s performance? No, not generally. They’ve gotten pushed around by Bush, and in the Senate, by the sizable Republican minority.

    If not, why is everyone who criticizes them a Republican shill? They’re not. Most are propaganda victims, not perpetrators.

    The difference between said victims and unhappy Democrats like myself and people like you and thoreau is that I recognize that the Democrats are folding out of a practical understanding of their precarious political position, while you’ve been convinced that, somehow, the 10% who cross the aisle are not only acting on principle, but are more representative of the party than the 90% who do not.

  53. After the Clinton II administration is inaugurated, excessive government secrecy will be __________.

    A) Eliminated
    B) Halved
    C) Diminished by >10%
    D) Remain approximately the same
    E) Increased

    The justification for the amount of secrecy will be ________.

    A) Operational security
    B) War on Terrorism
    C) War on Drugs
    D) Executive Privilege.
    E) All of the above
    F) None of the above. The new administration will be open and forthcoming about policymaking and governing details.

  54. Yeah, I’m being cynical today. I believe it’s caused by reading the news.

  55. I don’t think Democrats in the House and Senate have anywhere near the same desire as their Republican counterparts to give the executive branch free reign.

  56. Not that I think they will be as transparent as I hope…

  57. Clinton would be better than Bush on executive power and secrecy, bringing things aaaaaallllllllll the way back to the halcyon days of the modest, open governance of her husband, or nearly so. Ack, p’tui!

    Obams would be better than her.

  58. Interestingly enough some of the more ‘socialistic’ nations of Northern Europe(Scandanavia) have some of the most open and transparent gov’ts in the world.

  59. joe-

    No, I’m not asking them to over-ride a veto. I’m asking them to simply not vote for a new bill that includes immunity. If Bush vetoes immunity, the only thing I ask is that they pass no bill at all.

    As to why I blame those who vote on the right side: If this was only about head counts, I wouldn’t. However, there are procedural tools that can be used to thwart the majority (especially in the Senate, but even in the House, as evidenced by Hastert not allowing votes if “a majority of the majority” was not on board). And there are some hard questions to ask of those who vote correctly on a bill but support majority leaders who go the wrong way on major bills.

    Let’s take this to UO. I’ll spell out the bet in detail there.

  60. Well, thoreau, the House already passed their bill.

  61. Well, thoreau, the House already passed their bill.

    That’s good, joe. Let’s see what happens in the Senate. And after the Senate there’s the conference committee. And if the conference committee sends out something good, let’s see what happens after the veto.

    If immunity doesn’t pass by January 3, 2009 (when the current Congress ends) I’m willing to eat crow. Go to Unqualified Offerings for details of the bet.

  62. Wait a second, thoreau.

    Were did I say it wasn’t going to pass?

    It wouldn’t surprise me if Reid pushed it through at all.

    Our disagreement is about WHY Bush keeps getting his way. I think we both understand that he does, far too often.

    You keep writing that the Democrats are going along with it, I keep pointing out that they keep voting against him by 90-100%.

    I don’t know if immunity is going to pass or not.

  63. Who voted to make Reid the majority leader? Who gets to appoint the conference committees?

    Pelosi gets blame too, joe. It can’t pass without her going along with it. And if the Democrats in both Houses of Congress have installed and continue to support leaders who let this shit happen, we have to ask some questions.

    Let’s see how this plays out.

  64. Some majority of Democrats a few years ago. So?

    we have to ask some questions.

    Spit it out, thoreau. What’s on your mind?

  65. I rarely leave people confused about what I think, thoreau. Especially if I repeatedly comment on something.

    In most cases, you don’t either.

    So, what questions? I’m tired of this “I just think it’s interesting,” “Some would say” bullshit.

    I put my cards on the table: Ted Kennedy is safely ensconced in his seat, and isn’t afraid to stand up for our rights against the Republican onslaught. “Blue dog” Democrats and the Leader of a 50-1/2% majority, on the other hand, are still trembling that some chickenhawk across the aisle (or in the White House) might call them “soft on terrorism.”

    What are you saying, thoreau?

  66. joe, it is possible for House members to mount a coup. They nearly did it to Gingrich. If they don’t mount a coup over immunity, we need to ask them if they really case whether the 4th amendment is eviscerated.

  67. Why would the House members launch a coup? Their leader was the whip who voted against the Iraq War, and passed a FISA bill with no immunity.

    Pelosi WAS the coup.

    Did you mean the Senate?

  68. If you meant the Senate: please note that the Senate Republicans didn’t launch a coup against Dole, despite the fact that he was much more moderate than Gingrich.

    It’s the Senate, where comity rules, relative moderates get elected, and nobody wants to look like they’re getting their hands dirty.

  69. Clinton would be better than Bush on executive power and secrecy, bringing things aaaaaallllllllll the way back to the halcyon days of the modest, open governance of her husband, or nearly so. Ack, p’tui!

    Obams would be better than her.

    You’re probably right on thee first statement.
    You’re definitely right on the second.

  70. joe, I was indeed referring to the House. For now, Pelosi has allowed the right bill to pass. However, if immunity passes (and you yourself admitted that it’s possible) then it will almost certainly be with her procedural acquiescence. In that case, I will fault any Democrat who doesn’t launch a procedural coup against Pelosi.

    The bottom line is this: It’s been a year since the Dems gained alleged control of Congress, yet on every major issue related to the war and civil liberties Bush has gotten his way. A string of victories like that for the White House requires at least the procedural acquiescence of the leadership. If the rank-and-file do not demand better of the leadership, if they renounce any method that might deal a setback to the White House on war and civil liberties, and if they do not hold the leadership accountable, they are complicit.

  71. if they renounce any method that might deal a setback to the White House on war and civil liberties

    Oh, ok. Just as long as you aren’t setting the bar absurdly high.

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