Constitutional Law

Lawmakers Introduce Measure To Curtail State Secrets Privilege

Lawmakers in Congress have introduced legislation to strengthen the ability of courts to limit the executive branch’s use of the state secrets privilege. The move as noted by CQ Politics’ Legal Beat blog comes on the heels of the Justice Department’s defense of the Bush administration’s use of the privilege to scuttle a lawsuit challenging the controversial policy of rendition. The Mohamed v. Jeppesen case involves five men apprehended by the CIA and shipped to other countries to be interrogated. The men, represented by the ACLU, allege that they were tortured during their interrogations.

The Bush administration urged the dismissal of the case saying the state secrets privilege protected the administration from releasing any information on rendition. The ACLU appealed the case to the 9th U.S. Circuit Court of Appeals and earlier this week the Justice Department told the court that the state secrets privilege should apply. ACLU Executive Director Anthony D. Romero blasted the Justice Department’s stance, saying it “stood up in court … and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government. This is not change. This definitely is more of the same.”

Rep. Jerrold Nadler (D-N.Y.) has reintroduced legislation to force judges to review the executive branch’s claim of state secrets privilege. Legal Beat reported that Sen. Patrick Leahy (D-Vt.) has also introduced similar legislation in that chamber. In a press statement Leahy said, “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. In light of the pending cases where the privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation.”

An ACS panel discussion on Capitol Hill last year examined the use of the state secret privilege and its history in constitutional jurisprudence. Ben Wizner, an ACLU attorney and participant in the discussion, said the executive branch’s use of the privilege appeared “a lot more malleable than it would like to admit. If information or evidence is needed to hold the government liable in a civil case, or to prevent a possible future prosecution of government agents, the evidence is withheld or possibly destroyed.” A transcript of the discussion and video of it are available here and here.

Full post as published by ACS Blog on February 12, 2009 (boomark / email).