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Constitution Project Committee Members Testify Before House Subcommittee in Support of Reform to the State Secrets Privilege

Senate Judiciary Committee also addresses abuse of privilege - holds markup of reform legislation

members of the Constitution Project's Liberty and Security Committee
will testify today before the House Judiciary Subcommittee on the
Constitution, Civil Rights, and Civil Liberties at a hearing on H.R.
984, the State Secret Protection Act. Asa Hutchinson, former member of
Congress (R-AR), director of the Drug Enforcement Agency, and
undersecretary for the Department of Homeland Security under President
Bush, as well as Judge Patricia Wald, former Chief Judge of the U.S.
Court of Appeals for the D.C. Circuit, will testify in support of
reform of the state secrets privilege. The hearing, scheduled for 2
p.m., is being held to examine legislation introduced by
Representatives Jerrold Nadler (D-NY) and Tom Petri (R-WI) that would
overhaul the privilege while protecting sensitive national security
information. The bill would restore the role of courts in evaluating
evidence that the executive branch claims is subject to the state
secrets privilege.

action is needed to rein in unchecked claims of secrecy by the
executive branch and restore our system of checks and balances," said
Asa Hutchinson, Constitution Project Liberty and Security Committee
member. "My experience in both the executive and legislative branches
has given me an appreciation for both the need to protect national
security information and the importance of judicial oversight that will
allow plaintiffs to have their day in court. Congress needs to act to
restore a proper balance that will serve both these societal needs."

today, the Senate Judiciary Committee is scheduled to markup the
Senate's version of the State Secrets Protection Act (S. 417),
introduced by Senator Patrick Leahy (D-VT) during the last legislative
session. Both bills would reform the state secrets privilege by
restoring the role of courts in determining what evidence is sensitive
national security information that must be protected from disclosure,
while permitting cases challenging national security programs to go
forward whenever possible.


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state secrets privilege has become an immunity doctrine that the
executive branch has used to shut down law suits it would rather not
address," said Sharon Bradford Franklin, Constitution Project Senior
Counsel. "Both President Bush and President Obama have relied on this
doctrine to prevent plaintiffs from having their day in court. Both
bills would provide critical reform to the state secrets doctrine and
allow court cases to move forward when possible, while protecting
sensitive national security information that could be harmful if made
public. By ensuring that our federal courts independently determine
whether there is enough non-privileged evidence for a case to proceed,
both bills would restore checks and balances and help prevent abuse."

Constitution Project sent a letter to the Senate Judiciary Committee
yesterday, urging the committee to pass the state secrets legislation
and oppose the many proposed amendments that would undermine the
important reforms set forth in the bill. To see a copy of the letter,
go to:

A copy of Hutchinson's testimony submitted to the subcommittee will be available later today at:


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The Constitution Project is a politically independent think tank established in 1997 to promote and defend constitutional safeguards. More information about the Constitution Project is available at

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