Constitution Project Welcomes Oversight of State Secrets Privilege
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FOR IMMEDIATE RELEASE
January 29, 2008
9:50 AM
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CONTACT: The Constitution Project
Corey Owens
The Constitution Project
Communications Director
(202) 580-6922
cowens@constitutionproject.org
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Constitution Project Welcomes Oversight of State Secrets Privilege
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WASHINGTON, DC - January 29 - Today, the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Committee on the Judiciary heard testimony calling for reform of the "state secrets privilege." Under this privilege, the executive branch has refused to produce certain evidence on the grounds that its disclosure in litigation could damage national security. Increasingly since September 11th, federal judges have seen this privilege as absolute, and have dismissed challenges to national security policies without conducting any independent review of the evidence claimed to be sensitive.
"Instead of using the state secrets privilege to protect actual national security secrets, the executive branch too often asserts the privilege to block any and all review of controversial government programs," said Constitution Project senior counsel Sharon Bradford Franklin. "By abdicating their authority to conduct an independent review of purportedly secret evidence, the courts have ceded the executive branch virtually unchecked power to quash lawsuits. Congressional action to ensure that the state secrets privilege is used to protect national security and not to shield the executive branch from accountability is long overdue."
Among those testifying was Judith Loether, daughter of Albert Palya, one of the civilian engineers whose deaths in a B-29 accident were at issue in United States v. Reynolds, the 1953 Supreme Court case that established the state secrets privilege. During a search she conducted over forty years after the landmark Reynolds decision, Ms. Loether discovered the then-recently declassified accident report at issue in the case, and learned that the report did not actually contain any information about the plane's secret mission. Ms. Loether, told members of the committee that, "It seemed that the case that allows the Executive to keep its secrets was, at its very foundation, a gross overstatement by the government to forward its own purposes; to get themselves a privilege. At what cost? The cost was truth and justice and faith in this government."
The Senate is also currently considering legislation, introduced by Senator Edward Kennedy (D-MA), which would reform the state secrets privilege. The Constitution Project's bipartisan Liberty and Security Committee and the Coalition to Defend Checks and Balances previously issued a report calling for legislative reform of the privilege.
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