Senate Report Scrutinizes the State Secrets Privilege
A new report from the Senate Judiciary Committee examines the use of the state secrets privilege by the executive branch and describes the intent of new legislation to strengthen judicial review of its use in civil litigation.
The 53 page report summarizes the latest legal scholarship on the state secrets privilege, as well as the controversy that has surrounded it.
“In recent years, the executive branch has asserted the privilege more frequently and broadly than before, typically to seek dismissal of lawsuits at the pleadings stage. Facing allegations of unlawful Government conduct ranging from domestic warrantless surveillance, to employment discrimination, to retaliation against whistleblowers, to torture and ‘extraordinary rendition,’ the Bush-Cheney administration has invoked the privilege in an effort to shut down civil suits against both Government officials and private parties. Courts have largely acquiesced,” the report states.
“While there is some debate over the extent to which this represents a quantitative or qualitative break from past practice, ‘[w]hat is undebatable … is that the privilege is currently being invoked as grounds for dismissal of entire categories of cases challenging the constitutionality of Government action,’ and that a strong public perception has emerged that sees the privilege as a tool for Executive abuse.”
“In response to the growing concerns about the state secrets privilege, Senator Kennedy, Senator Specter, and Senator Leahy introduced the State Secrets Protection Act to provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in Government and the courts.”
The new report includes dissenting views from several Republican members of the Judiciary Committee, who argue that the existing arrangements already strike the “right balance between openness, justice and national security.” See “State Secrets Protection Act,” Senate Judiciary Committee Report 110-442, August 1.
Another new report from the Senate Judiciary Committee addresses court-ordered secrecy, and would limit judicial authority to seal court records pertaining to public health and safety. The report describes pending legislation that “requires judges to consider the public’s interest in disclosure of health and safety information before issuing a protective order or an order to seal court records or a settlement agreement.” See “Sunshine in Litigation Act,” Senate Judiciary Committee Report 110-439, August 1.
Satellite imagery of RAF Lakenheath reveals new construction of a security perimeter around ten protective aircraft shelters in the designated nuclear area, the latest measure in a series of upgrades as the base prepares for the ability to store U.S. nuclear weapons.
It will take consistent leadership and action to navigate the complex dangers in the region and to avoid what many analysts considered to be an increasingly possible outcome, a nuclear conflict in East Asia.
Getting into a shutdown is the easy part, getting out is much harder. Both sides will be looking to pin responsibility on each other, and the court of public opinion will have a major role to play as to who has the most leverage for getting us out.
How the United States responds to China’s nuclear buildup will shape the global nuclear balance for the rest of the century.