Intellectual Property Law

Lawmakers Reining in Judges on State Secrets

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

U.S. Lawmakers on Wednesday introduced legislation that might make it more difficult for federal judges to scuttle lawsuits in which the government claims state secrets might be exposed.

The proposals in the House and Senate came two days after U.S. Attorney General Eric Holder ordered the agency to review litigation inherited from the Bush administration in which the so-called state-secrets privilege was invoked. That same day, however, the Justice Department invoked the privilege before a San Francisco federal appeals court in a bid to block a lawsuit brought by five U.S. prisoners who claim they were kidnapped ? or rendered ? from the United States and flown overseas where they claim they were tortured.

The state-secrets defense was first recognized by the U.S. Supreme Court in a McCarthy-era lawsuit in 1953, and has been increasingly and successfully invoked by federal lawyers seeking to shield the government from court scrutiny. Generally, lawsuits in which national-security information may be divulged are usually tossed by judges at the request of the government.

Among other things, the proposals would require the government at least to justify to a judge that the lawsuit or evidence in the case could jeopardize national security. In Monday's rendition case, and in dozens of others, federal judges routinely accept the government's privilege assertion on face value without any inquiry.

The public became familiar with the privilege when the Bush administration invoked it in the Electronic Frontier Foundation's lawsuit accusing the nation's telecoms of funneling Americans' electronic communications to the National Security Agency without warrants.

U.S. District Judge Vaughn Walker of San Francisco refused to recognize the privilege and the government appealed. The appeal was mooted last year when Congress, and then Sen. Barack Obama, approved legislation immunizing the companies from the lawsuit.

A legal challenge to the legislation is pending.

The Bush administration invoked the privilege at least 39 times whereas all other administrations have done so about 16 times.

The House version (.pdf) of the State Secrets Protection Act was introduced by Reps. John Conyers (D-Michigan), Jerrold Nadler (D-New York), Thomas Petri (R-Wisconsin), William Delahunt (D-Massachusetts) and Zoe Lofgren (D-California.)

The Senate version was unveiled by Sens. Arlen Specter (R-Pennsylvania), Patrick Leahy (D-Vermont), Russ Feingold (D-Wisconsin) and Sheldon Whitehouse (D-Rhode Island).

(A copy of the Senate bill was not immediately available.)

See Also:

• Judge: President's 'State Secrets' Privilege Can't Shield ...
• Verizon and Feds To Seek Dismissal of Anti-Spying Suit Thursday ...
• State Secrets Prevails in Illinois
• Judge Elides State Secrets Claim
• State Secrets Privilege Misused From the Start
• Judge Questions "State Secrets" Claim in ATT Spy Case
• Data-Mining the EFF and ATT Legal Papers
• State Secrets Expert Disdains Spy Case Proposal
• Ninth Circuit Accepts Appeal of Anti-State Secrets Decision ...
• Analysis: Spy Ruling Bodes Well for AT&T Eavesdropping Case ...
• U.S. 9th Circuit Deals Setback to NSA Surveillance Victim

Full post as published by Threat Level on February 11, 2009 (boomark / email).