KENNEDY INTRODUCES STATE SECRETS PROTECTION ACT
(As entered into the record)
January 22, 2008
FOR IMMEDIATE RELEASE
Today, Senator Specter and I are introducing the “State Secrets Protection Act.” I’ve been working on this bill with Senator Specter for several months, and I thank him for his commitment and leadership on this very important issue. I hope that our collaboration on this legislation will demonstrate that even the most sensitive problems can be addressed through bipartisan cooperation if we keep the interests of the nation front-and-center and roll up our sleeves to do the work of seeking a realistic and workable solution. The State Secrets Protection Act is an essential response to a pressing need.
For years, there has been growing concern about the state secrets privilege. It’s a common law privilege that lets the government protect sensitive national security information from being disclosed as evidence in litigation. The problem is that sometimes plaintiffs may need that information to show that their rights were violated. If the privilege is not applied carefully, the government can use it as a tool for cover-up, by withholding evidence that is not actually sensitive. The state secrets privilege is important, but there’s a risk it will be overused and abused.
The privilege was first recognized by the Supreme Court in 1953, and it’s been asserted since then by every administration, Republican and Democratic. Under the Bush Administration, however, use of the state secrets privilege has dramatically increased—and the harmful consequences of its irregular application by courts have become painfully clear.
Injured plaintiffs have been denied justice; courts have failed to address fundamental questions of constitutional rights and separation of powers; and confusion pervades this area of law. The Senate debate on reforming the Foreign Intelligence Surveillance Act has become far more difficult than it ought to be, because many believe that if courts hear lawsuits against telecommunications companies, the courts will be unable to deal fairly and effectively with the government’s invocation of the privilege.
Studies show that the Bush Administration has raised the privilege in over 25% more cases per year than previous administrations, and has sought dismissal in over 90% more cases. As one scholar recently noted, this Administration has used the privilege to “seek blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs” related to its war on terrorism, and as a result, the privilege is impairing the ability of Congress and the judiciary to perform their constitutional duty to check executive power.
Another leading scholar recently found that “in practical terms, the state secrets privilege never fails.” Like other commentators, he concluded that “the state secrets privilege is the most powerful secrecy privilege available to the president,” and “the people of the United States have suffered needlessly because the law is now a servant to executive claims of national security.”
In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. For almost 30 years, courts have effectively applied that law to make criminal trials fairer and safer. During that period, Congress has also regulated judicial review of national security materials under the Foreign Intelligence Surveillance Act and the Freedom of Information Act. Because of these laws, federal judges regularly review and handle highly classified evidence in many types of cases.
Yet in civil cases, litigants have been left behind. Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We’ve failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information. Because use of the state secrets privilege has escalated in recent years, there’s an increasing need for the judiciary and the executive to have clear, fair, and safe rules.
Many have recognized the need for congressional guidance on this issue. The American Bar Association recently issued a report “urg[ing] Congress to enact legislation governing federal civil cases implicating the state secrets privilege.” The bipartisan Constitution Project found that “legislative action [on the privilege] is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government.” Leading constitutional scholars sent a letter to Congress emphasizing that there “is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process.”
The State Secrets Protection Act we are introducing responds to this need by creating a civil version of CIPA. The Act provides guidance to the federal courts in handling assertions of the privilege in civil cases, and it restores checks and balances to this crucial area of law by placing constraints on the application of state secrets doctrine. The Act will strengthen our national security by requiring judges to protect all state secrets from disclosure, and it will strengthen the rule of law by preventing misuse of the privilege and enabling more litigants to achieve justice in court.
Recognizing that state secrets must be protected, the Act enables the executive branch to avoid publicly revealing evidence if doing so might disclose a state secret. If a court finds that an item of evidence contains a state secret, or cannot be effectively separated from other evidence that contains a state secret, then the evidence is privileged and may not be released for any reason. Secure judicial proceedings and other safeguards that have proven effective under CIPA and the Freedom of Information Act will ensure that the litigation does not reveal sensitive information.
At the same time, the State Secrets Protection Act will prevent the executive branch from using the privilege to deny parties their day in court or shield illegal activity that is not actually sensitive. A recently declassified report shows that the executive branch abused the state secrets privilege in the very Supreme Court case, United States v. Reynolds (1953), that serves as the basis for the privilege today. In Reynolds, an accident report was kept out of court due to the government’s claim that it would disclose state secrets. The court never even looked at the report. Now that the report has been made public, we’ve learned that in fact it contained no state secrets whatever—but it did contain embarrassing information revealing government negligence.
In recent years, federal courts have applied the Reynolds precedent to dismiss numerous cases—on issues ranging from torture, to extraordinary rendition, to warrantless wiretapping—without ever reviewing the evidence. Some courts have even upheld the executive’s claims of state secrets when the purported secrets were publicly available, as in the case of El-Masri v. Tenet.
In that case, there was extensive evidence in the public record that the plaintiff was kidnapped and tortured by the CIA on the basis of mistaken identity, but the court simply accepted at face value the government’s claim that litigation would require disclosure of state secrets. The court dismissed Mr. El-Masri’s case without even evaluating the evidence or considering whether the case could be litigated on other evidence.
When federal courts accept the executive branch’s state secrets claims as absolute, our system of checks and balances breaks down. By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, courts give the executive branch the ability to violate American laws and constitutional rights without any accountability or oversight, and innocent victims are left unable to obtain justice. The kind of abuse that occurred in Reynolds will no longer be possible under the State Secrets Protection Act.
The Act requires courts to examine the evidence for which the privilege is claimed, in order to determine whether the executive branch has validly invoked the privilege. The court must look at the actual evidence, not just government affidavits about the evidence, and make its own assessment of whether information is covered by the privilege. Only after a court has considered the evidence and found that it provides a valid legal defense can it dismiss a claim on state secrets grounds.
The Act also gives parties an opportunity to make a preliminary case with their own evidence, and it allows courts to develop solutions to let lawsuits proceed, such as by directing the government to produce unclassified substitutes for secret evidence. Many of these powers are already available to courts, but they often go unused. In addition, the Act draws on CIPA to include provisions for congressional reporting that will ensure an additional layer of oversight.
I’m pleased that the senior Senator from Pennsylvania and I have been able to work together to produce this bill. We expect to have a hearing soon on the state secrets privilege in the Judiciary Committee under the leadership of Chairman Leahy. I look forward to a full airing of the issues and the important feedback that will come from the Committee’s thoughtful consideration of the legislation.
In particular, as the bill moves forward, we intend to continue to explore the possibilities for providing relief to plaintiffs who have a winning case, but cannot get a trial because every piece of evidence they need is privileged. This is an extremely difficult subject, which Congress should address if we can find a fair way to do so that will also protect legitimate secrets. We will also explore other measures to make the bill stronger, such as providing expedited security clearance reviews for attorneys.
Under the State Secrets Protection Act, the nation will be able to preserve its commitment to individual rights and the rule of law, without compromising its national defense or foreign policy. Congress has clear constitutional authority to regulate the rules of procedure and evidence for the federal courts, and it’s long past time for us to exercise this authority on such an important issue. I urge my colleagues in the Senate to pass this needed legislation as soon as possible.
State Secrets Protection Act (S. 2533)
Protecting National Security and the Rule of Law
The State Secrets Protection Act provides guidance to federal courts in civil lawsuits.
· The state secrets privilege is a common law doctrine that the federal government can invoke to prevent evidence from being publicly disclosed in judicial proceedings, if it would harm national security.
· Congress has established clear procedures to govern secret evidence in criminal cases under the Classified Information Procedures Act. But Congress has not yet provided guidance on the use of secret evidence in civil cases, and federal courts are applying the privilege in different ways, leading to inconsistent results.
· Some federal judges have viewed the executive branch’s state secrets privilege claims as absolute. By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, these judges have given the executive branch the ability to violate American laws and constitutional rights without any accountability or oversight, and have left innocent victims unable to obtain justice.
· Reports document that the Bush administration has used the state secrets privilege more aggressively than previous administrations on cases ranging from kidnapping and torture to domestic warrantless wiretapping. As scholars have noted, the administration has used the privilege to “seek blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs,” and as a result, “the executive is stripping Congress of its ability to collaborate with the judiciary to curb executive power.”
The State Secrets Protection Act will enhance national security.
· The Act will enhance national security by clarifying for courts the definition of a state secret. There is no settled definition now, resulting in inconsistent decisions.
· The Act ensures that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act. For example, a court may limit a party’s access to hearings, court filings, and affidavits, or require counsel to have appropriate security clearances.
· If a court finds that an item of evidence contains a state secret, or cannot be effectively separated from other evidence that contains a state secret, then the evidence is privileged and may not be released.
· The Act allows the government to refuse to admit or deny items in a complaint, if the mere act of admitting or denying those claims would divulge a state secret. The Act also allows the government to intervene in a case to which it is not a party in order to protect state secrets.
· To prevent flawed judicial rulings from erroneously authorizing the release of state secrets, any court order under the Act is subject to expedited interlocutory appeal.
The State Secrets Protection Act will provide oversight of the executive branch.
· The Act clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege.
· If the court agrees that certain evidence is privileged, the court must, if possible, order the government to develop unclassified alternatives to the evidence. If the court determines that the evidence is not protected by the state secrets privilege, the evidence must be disclosed to the other parties and made available in the litigation, pursuant to the regular rules of evidence.
· In addition to providing careful judicial oversight, the Act requires the Attorney General to report regularly to congressional committees on the use of the privilege.
· Recently declassified information about the Supreme Court’s leading decision on the state secrets privilege, United States v. Reynolds (1953), provides an early example of executive abuse of the privilege. In that case, three widows sued the government over the deaths of their husbands in a B-29 crash, and asked for the accident report and statements from surviving crew members. The Supreme Court accepted the executive branch’s false assertion that the report contained references to secret electronic equipment, and therefore refused to allow the report to be used as evidence—without ever looking at the report itself. The report was declassified in the 1990s, and it contains no discussion at all of any secret equipment. That kind of abuse will no longer be possible under the State Secrets Protection Act.
The State Secrets Protection Act will provide justice to litigants.
· The Act gives parties an opportunity to make a preliminary case with their own evidence, and it allows courts to develop specific solutions to let lawsuits proceed whenever possible.
· The Act prohibits the practice of seeking to dismiss a lawsuit altogether on the basis of the state secrets privilege, before the court considers any evidence. It makes clear that the privilege is an evidentiary rule, not a justiciability rule.
· The Act protects innocent government defendants by allowing them to use state secrets evidence to establish a valid, meritorious defense in secure in camera proceedings. But it also prevents the government from invoking the state secrets privilege merely to cover up non-sensitive facts that would support a judgment for the opposing party.
Congress has clear constitutional authority to regulate the state secrets privilege.
· The Constitution explicitly grants Congress the power to enact “Regulations” concerning the jurisdiction of federal courts. This constitutional power gives Congress authority to review and approve rules of procedure and evidence for the federal courts. As the Supreme Court has stated, “Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution.”
· Although Article II of the Constitution has been understood to grant the executive branch broad authority over the handling of secret information, this power is neither unlimited nor exclusive. Congress and the courts, as coordinate branches of government, also have an interest in creating rules for the federal courts and in the use of evidence in the judicial process.
· Congress has a history of acting to regulate judicial proceedings related to sensitive national security information. Congress has enacted FOIA, created the FISA court, and regulated the use of classified information in criminal trials. The constitutionality of these laws is well-established. Because of these laws, federal judges regularly review and handle highly classified evidence in many types of cases, but civil litigants have been left out.
State Secrets Protection Act (S. 2533): Section-by-Section Summary
Section 4051: Definition
Defines state secrets as “any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States.” Not included is information that is already public or that has only a remote chance of harming national security.
Section 4052: Rules governing procedures related to this chapter
Allows the court to determine who will have access to documents and proceedings under the Act. The court may, in the interest of justice and national security, limit a party’s access to hearings, court filings, and affidavits, or require that attorneys have appropriate security clearances. The court may also assign a guardian ad litem or appoint a special master to assist in the proceedings.
Section 4053: Procedures for answering a complaint
Allows the government to intervene in any civil lawsuit to assert the privilege, which is no change from current practice. The court may not dismiss a lawsuit on state secrets grounds at the pleadings stage; it may dismiss a case on state secrets grounds only under Section 4055, after the parties have presented their evidence and the court has reviewed it. The government must file an answer to a complaint, but it may avoid admitting or denying certain facts by pleading “state secrets” to any allegation in a complaint. Each time the government pleads the privilege, it must submit an affidavit signed by the relevant agency head explaining why it is claiming the privilege.
Section 4054: Procedures for determining whether evidence is protected from disclosure by the state secrets privilege
Sets forth procedures for determining whether evidence is protected by the state secrets privilege. The court schedules a hearing to consider the government’s argument. The government must present to the court the evidence it asserts is protected by the privilege, and support its assertion with a signed affidavit. The court must make a privilege determination for each piece of evidence; if it contains a state secret, or cannot be effectively segregated from other evidence that contains a state secret, the evidence is privileged and may not be released. If the court finds that the evidence is privileged, it shall order the government where possible to create a non-privileged substitute for the evidence, such as an unclassified summary, a redacted version, a statement admitting the facts that the privileged evidence would tend to prove, or another alternative crafted by the court. If the government refuses to provide a non-privileged substitute ordered by the court, the court shall resolve the relevant issue of fact or law against the government.
Section 4055: Procedures when evidence protected by the state secrets privilege is necessary for adjudication of a claim or counterclaim
If the court finds that evidence is protected by the privilege and it is impossible to create substitute evidence, the court may dismiss the claim if it finds that doing otherwise would substantially impair the ability of a party to pursue a valid defense to the claim. The purpose of this Section is to protect parties for whom privileged evidence would provide a valid legal defense if they were able to introduce it.
Section 4056: Interlocutory appeal
Allows any party an expedited interlocutory appeal of any order under the Act. Such an appeal ensures a timely additional layer of review.
Section 4057: Security procedures
Draws heavily on the Classified Information Protection Act to provide security procedures.
Section 4058: Reporting
Requires the Attorney General to report within 30 days to the House and Senate Intelligence and Judiciary Committees on each instance in which the United States claims the state secrets privilege, including turning over copies of the affidavits required under Sections 4053 and 4054 of the Act.
 Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1939, 1933 (2007).
 See Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006).
 U.S. Const. art. III, § 2.
 Dickerson v. United States, 530 U.S. 428, 437 (2000).