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The State Secrets Privilege

By Mike Bushbaum

From The Secrecy News.

At a House Judiciary Subcommittee hearing today, witnesses discussed
the feasibility and advisability of legislating reforms to the state
secrets privilege.

The state secrets privilege has been used by the executive branch to
block discovery in civil litigation when the government believes that
there is an unacceptable risk of disclosure of sensitive national
security secrets. But on several occasions, the mere assertion of the
privilege has led to termination of the lawsuit. It has effectively
short-circuited the adjudication of claims against the government
involving domestic surveillance, unlawful detention, and torture.

"I do believe thoughtful legislation is needed to insure that maximum
and uniform efforts are made to strike the right balance between
national security needs and fair judicial proceedings," said the Hon.
Patricia M. Wald, the retired chief judge of the DC Circuit Court of
Appeals in testimony today.

Legislative intervention was also endorsed by H. Thomas Wells, Jr., the
president-elect of the American Bar Association, and by Kevin Bankston
of the Electronic Frontier Foundation, whose lawsuit on warrantless
domestic surveillance has prompted state secrets claims by the
government.

Patrick Philbin, a former deputy attorney general, argued that any
legislative proposal to permit judges to overrule the executive branch
regarding the sensitivity of particular information "would be a
mistake."

The prepared statements from the January 29th hearing.

In addition to the hearings, last week, Senators Kennedy, Specter and Leahy introduced "The State Secrets Protection Act."

Full post as published by V.U.Lawcity - The Valpo Law Blawg on January 30, 2008 (boomark / email).