Secrecy News

Reforming the State Secrets Privilege: Two Views

Attorney General Michael B. Mukasey this week expressed strong Bush Administration opposition (pdf) to pending legislation that would regulate the use of the state secrets privilege in civil litigation.

The proposed “State Secrets Protection Act” (S.2533), the Attorney General wrote in a detailed seven-page letter, “would needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine.”

In short, “We strongly oppose this legislation.”

See the Attorney General’s March 31, 2008 letter to Sen. Patrick J. Leahy, chair of the Senate Judiciary Committee.

At the request of Senator Edward M. Kennedy, an original sponsor of the State Secrets Protection Act, Attorney General Mukasey’s criticisms of the bill were reviewed and rebutted by Louis Fisher, the constitutional law expert at the Law Library of Congress.

“According to Attorney General Mukasey, Presidents are entitled to unilaterally define the scope of their powers under Article II and no other branch has any authority to impose limitations,” Dr. Fisher wrote (pdf).

“The Constitution has been interpreted in that manner at times by some Presidents, but never successfully. Such a reading would eliminate the checks and balances that are fundamental to the U.S. Constitution.”

See this April 2, 2008 memorandum prepared by Louis Fisher.

0 thoughts on “Reforming the State Secrets Privilege: Two Views

  1. I’ve been following this issue since I read about Sibel Edmonds and other whistleblowers who have never had the opportunity for a Court to examine their claims against our criminal government. The Administration seems to hide behind the “state secrets” privilege, and has used this defense an inordinate amount of times in recent years.

    I think everyone is cognizant of the need to protect information that would damage our ability to procure intelligence and fight the war on terror, BUT — the Government cannot simply apply this strong, blanket privilege every time someone comes forward with damaging information about how our government operates or some of the more shady dealings that happen behind closed doors.

    I think this legislation is a great compromise — well-written with plenty of safeguards in place. Courts have long viewed classified information “in camera” and we must all remember the Judiciary is the 3rd co-equal branch of government.

  2. I agree with Stu. There is a logical limit to anything man-made, and executive secrecy is no different. Without a compromise, there will be no progress.

    Thanks, Stu, for putting it so eloquently.

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