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.
No one will be surprised if we end up with a continuing resolution to push our shutdown deadline out past the midterms, so the real question is what else will they get done this summer?
Rebuilding public participation starts with something simple — treating the public not as a problem to manage, but as a source of ingenuity government cannot function without.
If the government wants a system of learning and adaptation that improves results in real time, it has to treat translation, utilization, and adaptation as core functions of governance rather than as afterthoughts.
Coordination among federal science agencies is essential to ensure government-wide alignment on R&D investment priorities. However, the federal R&D enterprise suffers from egregious siloization.