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State secrets privilege reform urged in House committee hearing

[JURIST] The US House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties [official website] on Thursday heard testimony [materials] on the state secrets privilege [JURIST news archive] in advance of consideration of the State Secret Protection Act [HR 984 text] that would reform the assertion of the privilege. Asa Hutchinson [JURIST op-ed], formerly a Republican member of Congress from Arkansas, director of the Drug Enforcement Agency, and undersecretary for the Department of Homeland Security [official websites] under president George W. Bush, and Patricia Wald, former Chief Judge of the US Court of Appeals for the DC Circuit [official website], both representing the Constitution Project's Liberty and Security Committee [advocacy website] testified in favor of the bill's passage. Arguing that Congress has the responsibility to reform the privilege through legislation, Hutchinson said [testimony, PDF]:

[t]he state secrets privilege ... has evolved from an evidentiary privilege into an immunity doctrine, which has blocked any litigation of cases involving national security programs. Over the past twenty years, courts have dismissed at least a dozen lawsuits on state secrets grounds without any independent review of the underlying evidence that purportedly would be subject to this privilege. Not only does this create an incentive for overreaching claims of secrecy by the executive branch, but it has prevented too many plaintiffs from having their day in court.

National Security Project Staff Attorney for the American Civil Liberties Union (ACLU) [advocacy website] Ben Wizner also testified [text, PDF] in support of the bill, pointing to the government's disparate treatment of state secrets in Mohammed v. Jeppesen Dataplan [complaint, PDF] and in testimony regarding the use of enhanced interrogation techniques [JURIST news archive]. Senior Legal Policy Analyst at the Heritage Foundation [advocacy website] Andrew Grossman [professional profile] testified that the bill unconstitutionally interferes with executive powers, that the current means of determining when to assert the privilege provided adequate safeguards, and that the assertion of the privilege has remained consistent throughout modern presidencies.

In April, the US Court of Appeals for the Ninth Circuit [official website] rejected a state secrets claim [JURIST report] by the government in a suit alleging that Boeing subsidiary Jeppesen Dataplan [corporate websites] supported direct flights to secret CIA prisons, facilitating the torture and mistreatment of US detainees. In February, the Ninth Circuit also denied a government appeal [JURIST report], seeking to assert the privilege in a lawsuit [JURIST report] brought by an Islamic charity alleging it was the subject of an illegal wiretap by the National Security Agency (NSA) [official website]. US Attorney General Eric Holder [official profile] in February ordered a review [JURIST report] of all government claims invoking the state secrets privilege, saying that each state secrets claim will be reviewed to make sure the privilege was invoked only in lawful situations. The Senate Judiciary Committee [official website] advanced similar legislation [JURIST report] last year that will need to be reconsidered this session.

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