Senate judiciary panel considers state secrets privilege

[JURIST] The US Senate Judiciary Committee held a hearing [committee materials] Wednesday on the state secrets privilege in preparation for debate on the State Secrets Protection Act [S 2533 summary], a bill introduced by committee leaders "to enact a safe, fair, and responsible state secrets privilege." The bill, introduced by Sen. Edward Kennedy (D-MA) and co-sponsored by Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA), is meant to curb the use of the state secrets privilege in lawsuits involving the federal government that may reveal government misconduct. The federal government has often tried to invoke the state secrets privilege, a Constitutional protection, in cases accusing the US government of extraordinary rendition, torture in interrogation of terrorists, and the NSA domestic surveillance program [JURIST news archives]. In his opening statement [text] during Wednesday's hearing, Leahy said that the federal government has been using the state secrets privilege to "evade accountability," but Deputy Assistant Attorney General Carl J. Nichols testified [text] that the lawsuits may risk disclosing sensitive intelligence information to terrorist groups.

The State Secrets Protection Act would prohibit courts from dismissing a lawsuit until the interested parties have allowed the court to review the evidence, including evidence the government wants to protect with the state secrets privilege. The government would have to present the evidence to the court with an affidavit signed by the head of the agency stating that the information contained therein is a state secret, and allow the court to make a ruling on each piece of evidence. Last fall, the government tried to invoke the state secrets privilege [JURIST report] in a lawsuit against the Society for Worldwide Interbank Financial Communication (SWIFT) [organization website], which had disclosed personal information about its customers to third parties including the CIA and US Treasury. Also last fall, the US Supreme Court denied the petition [JURIST report] for certiorari filed by Khaled el-Masri [JURIST news archive] against the US government, ostensibly supporting the Bush administration's contention that allowing el-Masri's rendition-related lawsuit [complaint, PDF; ACLU materials] to proceed would require the revelation of state secrets. AP has more.



 

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