from the FAS Project on Government Secrecy
Volume 2008, Issue No. 80
August 12, 2008

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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:


The Director of National Intelligence last week issued a new directive defining the role of the Chief Information Officer (CIO) for the U.S. intelligence community (IC).

The CIO will be responsible for "developing, maintaining, and facilitating the implementation of a sound and integrated information technology architecture for the IC" and will also "oversee IC information security policies."

See Intelligence Community Directive 500, "Chief Information Officer," August 7, 2008:


With the establishment of its Defense Counterintelligence and Human Intelligence Center (DCHC) on August 3, the Defense Intelligence Agency now has new authority to engage in offensive counterintelligence operations that seek to thwart foreign intelligence activities.

If defensive counterintelligence is checkers, then offensive counterintelligence is chess.

Unlike defensive counterintelligence, offensive counterintelligence is intended to "make something happen," a DIA spokesman said last week. It may involve infiltration, active deception and disruption of opposing intelligence services. It is hard to do well.

"DIA joins just three other military organizations authorized to carry out offensive counterintelligence operations--the Army Counterintelligence office, the Navy Criminal Investigative Serve and the Air Force office of Special Investigations," reported Pamela Hess of the Associated Press.

See "DIA's New Mission Adds to Intel Arsenal," August 5:

The Defense Intelligence Agency described at length the origins and intended functions of the new DCHC in a news media briefing last week. The transcript is here:


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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