[Congressional Record: January 23, 2008 (Senate)]
[Page S198-S201]



                      STATE SECRETS PROTECTION ACT

  Mr. KENNEDY. Mr. President, yesterday, Senator Specter and I
introduced the State Secrets Protection Act. I have 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 is 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 is a risk it will
be overused and abused.
  The privilege was first recognized by the Supreme Court in 1953, and
it has 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 percent more cases per year than previous administrations and
has sought dismissal in over 90 percent 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--
known as 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 have 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 is 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

[[Page S199]]

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 am 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, who is a cosponsor of the bill
and a strong supporter of state secrets reform. 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 is 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.
  Mr. SPECTER. Mr. President, I wish to discuss the State Secrets
Protection Act of 2008. Senator Kennedy and I are introducing this
bipartisan bill in order to harmonize the law applicable in cases
involving the executive branch's invocation of the privilege. This bill
is timely for several reasons. First, the use of the privilege appears
to be on the rise in the post-September 11, 2001, era, which has
generated new public attention and concern about its legitimacy.
Second, there is some disparity among the district and appellate court
opinions analyzing the privilege, particularly as to the question of
whether courts must independently review the allegedly privileged
evidence. Finally, a codified test for evaluating state secrets that
requires courts to review the evidence in camera--a Latin phrase
meaning ``in the judge's private chambers''--will help to reassure the
public that the claims are neither spurious nor intended to cover up
alleged Government misconduct. With greater checks and balances and
greater accountability, there is a commensurate increase in public
confidence in our institutions of Government.
  In view of its increasing use, inconsistent application, and public
criticism, we think the time is ripe to pass legislation codifying
standards on the state secrets privilege. Our bill builds upon
proposals by the American Bar Association and legal scholars who have
called upon Congress to legislate in this area.
  Mr. President, I begin my remarks by discussing some of the
historical and more recent applications of the state secrets doctrine--
which have run the gamut from cases involving military aviation
technology to CIA sources and methods, to extraordinary rendition and
the terrorist surveillance program, or TSP.
  In the 1876 case Totten v. United States, 92 U.S. 105, 1876, the
Supreme Court acknowledged a privilege that barred claims between the
Government and its covert agents ``in all secret employments of the
government in time of war, or upon matters affecting our foreign
relations, where a disclosure of the service might compromise or
embarrass our government in its public duties, or endanger the person
or injure the character of the agent.'' The Totten case involved a
purported Civil War spy who sought to sue President

[[Page S200]]

Lincoln to enforce an alleged espionage agreement. In 2005, the Court
reaffirmed the holding in Totten that ``lawsuits premised on alleged
espionage agreements are altogether forbidden.'' Tenet v. Doe, 544 U.S.
1, 2005.
  Notwithstanding Totten, the modern state secrets privilege was first
recognized by the Supreme Court in the 1953 case of United States v.
Reynolds, 345 U.S. 1, 1953. Reynolds involved the Government's
assertion of the military secrets privilege for an accident report
discussing the crash of a B-29 bomber, which killed three civilian
engineers along with six military personnel. In Reynolds, the Supreme
Court set out several rules pertinent to the assertion and
consideration of the state secrets privilege. For example, the Court
said the privilege belongs to the Government. It can be neither claimed
nor waived by a third party. The Court also held that the privilege
must be asserted ``in a formal claim of privilege lodged by the head of
the department which has control over the matter, after actual
consideration by that officer.'' Further, ``the showing of necessity
which is made will determine how far the court should probe in
satisfying itself that the occasion for invoking the privilege is
appropriate.'' Significantly, however, the Supreme Court held that the
material in question need not necessarily be disclosed to the reviewing
judge. On this point, the Reynolds Court said:

       Judicial control over the evidence in a case cannot be
     abdicated to the caprice of executive officers. Yet we will
     not go so far as to say that the court may automatically
     require a complete disclosure to the judge before the claim
     of privilege will be accepted in any case. It may be possible
     to satisfy the court, from all the circumstances of the case,
     that there is a reasonable danger that compulsion of the
     evidence will expose military matters which, in the interest
     of national security, should not be divulged. When this is
     the case, the occasion for the privilege is appropriate, and
     the court should not jeopardize the security which the
     privilege is meant to protect by insisting upon an
     examination of the evidence, even by the judge alone, in
     chambers.

  Unfortunately, this limitation on judicial review ultimately led to
further litigation and public skepticism when the accident report from
the Reynolds case was later declassified--a result the State Secrets
Protection Act seeks to avoid in future cases.
  In 2003, after the documents at issue in Reynolds were declassified,
one of the original plaintiffs and heirs of the others brought suit
alleging that the Government had committed a ``fraud upon the court.''
I cite Herring v. United States, 424 F.3d 384 (3d Cir. 2005), cert.
denied by Herring v. United States, 547 U.S. 1123, May 1, 2006. They
claimed the Government had asserted the military secrets privilege for
documents that did not reveal anything sensitive simply to conceal the
Government's own negligence. Nevertheless, both the district court and
the Third Circuit declined to reopen the case after finding that the
plaintiffs could not meet the high burden for proving a claim of fraud
on the court. The Third Circuit wrote:

       We further conclude that a determination of fraud on the
     court may be justified only by ``the most egregious
     misconduct directed to the court itself,'' and that it ``must
     be supported by clear, unequivocal and convincing evidence.''
     The claim of privilege by the United States Air Force in this
     case can reasonably be interpreted to include within its
     scope information about the workings of the B-29, and
     therefore does not meet the demanding standard for fraud upon
     the court.

  I cite Herring, 386-387. This ruling, however, did not end public
debate on the matter. As recently as last October, the New York Times
editorialized: ``[T]he Reynolds case itself is an object lesson in why
courts need to apply a healthy degree of skepticism to state secrets
claims. . . . When the documents finally became public just a few years
ago, it became clear that the government had lied. The papers contained
information embarrassing to the government but nothing to warrant top
secret treatment or denying American citizens honest adjudication of
their lawsuit.''
  Upon learning of the Herring case, which was filed in Philadelphia,
it became clear to me that codifying provisions for a court to use in
ruling on state secrets cases was desirable for a number of reasons--
including the added legitimacy of having a judge evaluate the validity
of the claim. I think that by requiring in camera court review, we will
ultimately provide parties with greater trust in the integrity of the
claim and, importantly, appropriate closure.
  The benefits of court review are illustrated by recent events in the
Ninth Circuit. On November 16, 2007, the Ninth Circuit decided Al-
Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir.
(Ca.) 2007), a case in which the plaintiffs challenged alleged
surveillance of their organization under the terrorist surveillance
program, TSP. The case stands out in TSP jurisprudence because the
plaintiff alleged the Government had unwittingly provided proof that it
was surveilling the plaintiff by inadvertently disclosing a partial
transcript of phone conversations. The district court denied the
Government's motion to dismiss on grounds of the state secrets
privilege, but the Ninth Circuit reversed. Citing Totten and Reynolds,
the Al-Haramain court acknowledged that when the very subject matter of
the lawsuit is a state secret, dismissal without evaluating the claim
might be appropriate. However, given all of the public disclosures
concerning the TSP, the Al-Haramain court held that the subject matter
of the lawsuit was not itself a state secret. Instead, the court
concluded that it ``must make an independent determination whether the
information is privileged.'' This is 507 F.3d at 1202. It did so by
undertaking a full review of the privileged documents in camera. The
Al-Haramain court described its review of the sealed document at issue
and the balancing test it imposed:

       Having reviewed it in camera, we conclude that the Sealed
     Document is protected by the state secrets privilege, along
     with the information as to whether the government surveilled
     Al-Haramain. We take very seriously our obligation to review
     the documents with a very careful, indeed a skeptical, eye,
     and not to accept at face value the government's claim or
     justification of privilege. Simply saying ``military
     secret,'' ``national security'' or ``terrorist threat'' or
     invoking an ethereal fear that disclosure will threaten our
     nation is insufficient to support the privilege. Sufficient
     detail must be--and has been--provided for us to make a
     meaningful examination. The process of in camera review
     ineluctably places the court in a role that runs contrary to
     our fundamental principle of a transparent judicial system.
     It also places on the court a special burden to assure itself
     that an appropriate balance is struck between protecting
     national security matters and preserving an open court
     system. That said, we acknowledge the need to defer to the
     Executive on matters of foreign policy and national security
     and surely cannot legitimately find ourselves second guessing
     the Executive in this arena.

  I cite 507 F.3d at 1203
  The State Secrets Protection Act essentially codifies the Al-Haramain
test by requiring courts to evaluate the assertion of a state secrets
privilege in light of an in camera review of the allegedly privileged
documents. I think it is highly advisable to codify both the means of
asserting the privilege and the method for reviewing courts to go about
resolving claims of privilege because the state secrets privilege is
being asserted more frequently and the resulting decisions will benefit
from more consistent procedures. Indeed, one recent study indicates
that, of the approximately 89 state secrets cases adjudicated since the
Supreme Court's decision in Reynolds, courts have declined to review
any evidence in at least 16 cases. It is unclear whether the courts
reviewed any evidence in another 16 cases, so the number could be as
high as 32, or more than a third of the total. The current bill would
end this practice.
  Reliable statistics on the use of the state secrets privilege are
somewhat difficult to come by because not all cases are reported. The
Reporters' Committee for Freedom of the Press claims that, ``while the
government asserted the privilege approximately 55 times in total
between 1954 . . . and 2001, [the government] asserted it 23 times in
the four years after Sept. 11.'' With the use of the privilege
apparently on the rise, the risk of abuse also grows. As I have noted,
critics argue that the Government has abused the privilege to cover up
cases of malfeasance and illegal activity. They point to the aftermath
of Reynolds and more recently to the case of Khaled El-Masri, whose
claim that the was subject to extraordinary rendition was dismissed
following the Government's successful assertion of the state secrets
privilege at the district and appellate court levels. This is El-Masri
v. United States, 479 F.3d 296 (4th Cir. (Va.) March 2, 2007), cert.
denied, 128 S.Ct. 373 (October 9, 2007). Although the Supreme

[[Page S201]]

Court declined to revisit the state secrets doctrine in the El-Masri
case, there is ample cause for congressional action--both to protect
legitimate secrets and ensure public confidence in the process for
adjudicating such privilege claims.

  The State Secrets Protection Act establishes a clear standard for
application of the state secrets privilege and creates procedures for
reviewing courts to follow in evaluating privilege claims.
Specifically, the Kennedy-Specter State Secrets Protection Act:
  Defines state secrets and codifies the standard for evaluating
privilege claims: The bill defines ``state secret'' 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.'' It requires Federal courts to decide cases after
``consideration of the interests of justice and national security.''
  Requires court examination of evidence subject to privilege claims:
The legislation requires courts to evaluate the privilege by reviewing
pertinent evidence in camera. By statutorily empowering courts to
review the evidence, the bill will substantially mitigate the risk of
future allegations that the Government committed ``fraud upon the
court,'' as asserted by the Reynolds plaintiffs 50 years after the
landmark decision.
  Closes hearings on the privilege--except those involving mere legal
questions: Under the legislation, hearings are presumptively held in
camera but only ex parte if the court so orders.
  Requires attorney security clearances: Under the bill, courts must
limit participation in hearings to evaluate state secrets to attorneys
with appropriate clearances. Moreover, it allows for appointment of
guardians ad litem with clearances to represent parties who are absent
from proceedings.
  Permits the Government to produce a nonprivileged substitute:
Consistent with the Classified Information Procedures Act, the bill
allows for the use of nonprivileged substitutes, where possible. If the
court orders the Government to provide a nonprivileged substitute and
the Government declines to provide it, the court resolves fact
questions involving the evidence at issue against the Government.
  Protects evidence: The proposed bill incorporates the security
procedures established in the Classified Information Procedures Act and
permits the Chief Justice to create additional rules to safeguard state
secrets evidence.
  I commend the bill to all of my Senate colleagues.

                          ____________________

FOR IMMEDIATE RELEASE
Office of Senator Edward M. Kennedy
CONTACT: Melissa Wagoner

January 22, 2008
(202) 224-2633

KENNEDY INTRODUCES STATE SECRETS PROTECTION ACT

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

Protecting National Security and the Rule of Law

The State Secrets Protection Act provides guidance to federal courts in civil lawsuits.

The State Secrets Protection Act will enhance national security.

The State Secrets Protection Act will provide oversight of the executive branch

The State Secrets Protection Act will provide justice to litigants.

Congress has clear constitutional authority to regulate the state secrets privilege.

State Secrets Protection Act: 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.



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[1] Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1939, 1933 (2007).

[2] See Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006).

[3] U.S. Const. art. III, � 2.

[4] Dickerson v. United States, 530 U.S. 428, 437 (2000).