by James Oliphant
The Senate Judiciary Committee Thursday approved a bill that attempts to limit the government's use of the state secrets privilege, a broad-based evidentiary claim based on national security concerns that the Bush administration has used frequently in court cases involving the government.
Federal courts have routinely dismissed lawsuits over the National Security Agency's warrantless wiretapping program and the government's use of detention, interrogation and "extraordinary rendition" after the privilege has been cited because the suits cannot proceed with the requested evidence.
The government has even been able to use it successfully in cases in which it isn't the defendant, such as the wiretapping suits against telecom companies, to knock out the claims.
A federal judge in Chicago Wednesday took the rare step of disagreeing with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.
The bill creates a uniform set of procedures for federal judges to employ when the government asserts the privilege. But perhaps most significant, it would require the government to actually produce the evidence it says is protected for review by a federal judge in a classified setting. The government would be unable to rely on affidavits as it has in the past.
It also would prevent judges from dismissing cases based on the privilege before plaintiffs have had a chance to engage in evidentiary discovery.
"It's long past time for Congress to address the state secrets privilege. Congress needs to ensure--and the American people need to feel confident--that the courts are adjudicating the privilege properly and not just giving the Executive a free pass," Sen. Edward Kennedy (D-Mass.) said Thursday. "This legislation is not just about safeguarding the rights of private parties, important as that is. It's also about safeguarding the public interest, shared by all Americans, in having an executive branch that complies with the law and the Constitution and in preserving the integrity of our courts. No one in America should be above the law. That's why this legislation is so critical and why it has such broad support."
But the bill did not have solid bipartisan support on the committee. Only one Republican, Sen. Arlen Specter (R-Pa.) voted to move it on to the Senate floor.
That makes the future of the measure, S. 2533, unclear. The Senate has a lot on its plate and little time to get it all done as the calendar becomes increasingly dominated by elections in the fall.
Read the Wikipedia entry on the State Secrets Privilege here.