Sunday, November 15, 2009

House Committee Marks Up State Secrets Bill

On Nov. 5, the House Judiciary Committee began markups on a bill that would codify standards for when and how the executive branch may apply the state secrets privilege in civil litigation. Although the Obama administration has promised certain limitations on its own use of the privilege, civil liberties and open government groups continue to call for legislation to address the privilege. Ultimately, the committee approved the bill on an 18-12 vote and referred the legislation to the full House. The state secrets privilege was created by the U.S. Supreme Court’s decision in United States v. Reynolds (1953). Historically, the privilege has typically been invoked to withhold specific pieces of evidence from being reviewed by a judge for possible introduction at trial. Officials in the Bush administration interpreted the privilege more broadly and repeatedly used it to pressure courts to dismiss entire cases, arguing that any and all records related to the government's defense would be state secrets. Despite the privilege’s court origins, few judges have been willing to question or limit its use. Critics contend that the privilege has been misused to cover up violations of U.S. and international law, such as wiretapping programs, torture, and rendition. In addition, the public learned that the classified material in the original Reynolds case, once declassified in 2000, actually contained no secret information. The bill would prevent the outright dismissal of an entire lawsuit without an independent review of the evidence deemed privileged. The legislation would require the White House to submit the information it deems a state secret to a federal judge, who would conduct an independent review of the material. Further, if the court believes the executive branch claim is legitimate, then the court can require a non-privileged substitute of the evidence to be created, if possible. Refusal to submit evidence would result in a finding against the government...read more

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