Senate judiciary panel advances bill curbing state secrets privilege

[JURIST] The US Senate Judiciary Committee has approved the State Secrets Protection Act [S 2533 materials; CRS summary], sending the legislation to the Senate floor for consideration. The legislation, approved by a 11-8 vote on Thursday, would place restrictions on when the executive can assert the so-called state secrets privilege [JURIST news archive] in lawsuits involving the federal government. According to the Congressional Research Service summary of the bill, the legislation:

Amends the federal judicial code to: (1) require a federal court to determine which filings, motions, and affidavits (or portions) submitted under this Act shall be submitted exparte; (2) allow a federal court to order a party to provide a redacted, unclassified, or summary substitute of a filing, motion, or affidavit to other parties; and (3) require a federal court to make decisions under this Act, taking into consideration the interests of justice and national security. ...

Authorizes the United States to intervene in any civil action in order to protect information that may be subject to the state secrets privilege. Declares, however, that the state secrets privilege shall not constitute grounds for dismissal of a case or claim.

Prescribes procedures for: (1) determining whether evidence is protected from disclosure by the state secrets privilege; and (2) when evidence protected by the state secrets privilege is necessary for adjudication of a claim or counterclaim.

...

Requires the Attorney General within 30 days to report in writing to Congress on any case in which the United States invokes the state secrets privilege. ...
Sen. Patrick Leahy (D-VT), a co-sponsor of the legislation and chairman of the Judiciary Committee, welcomed the committee's advancement of the bill [press release], saying Thursday:
The Senate should consider this carefully crafted legislation quickly. This administration continues to show unprecedented deference to secrecy rather than transparency. The State Secrets Protection Act clarifies that no one, not even a president, is above the law. We can have security while preserving the Constitution's system of checks and balances and the important role of the courts. This legislation is a step to ensure that our laws protect both.
The administration is opposed to the legislation, and US Attorney General Michael Mukasey sent a letter [PDF text; JURIST report] to Leahy earlier this month noting that the bill:
needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine.
Mukasey indicated that President George W. Bush would likely veto the bill in its present form. AP has more.


 

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