Advocacy Groups Urge Legislative Action on State Secrets

In a letter sent today to the leadership of the House and Senate
Judiciary Committees, the Constitution Project joined with six other
human rights and open government advocacy organizations in urging the
members of Congress to enact legislation to protect the role of the
courts in determining whether the state secrets privilege applies in
given cases. The groups noted that legislative action is still needed
despite yesterday's announcement by the Department of Justice of a new
administration state secrets policy. Bills that would provide such
reform have already been introduced in each chamber of Congress, both
titled the State Secrets Protection Act: S. 417 sponsored by Senator
Patrick Leahy (D-VT), and H.R. 984 sponsored by Representative Jerrold
Nadler (D-NY).

The seven organizations joining in the letter are the
ACLU Washington Legislative Office, the Brennan Center for Justice, the
Center for Democracy and Technology, the Constitution Project, Human
Rights First, the National Security Archive, and OMB Watch. This action
was spurred by the Department of Justice announcement yesterday of a
new administration-wide policy tightening the standards for approving
an assertion of the privilege by the government. The organizations
noted that they welcome the new policy as a positive and important
first step, but that legislation is still needed to ensure against
future abuse of the privilege.

In part, the letter states:

"Both the Bush and Obama administrations have
previously relied upon the state secrets privilege to block litigation
challenging policies ranging from warrantless wiretapping to
extraordinary rendition, and our organizations welcome the new policy
as an important first step in bringing much needed reform to the use of
this doctrine. However, legislative reform is still vitally needed to
address a variety of problems not addressed in the new executive
policy. We therefore write to urge you to enact legislation such as the
pending versions of the State Secrets Protection Act (S. 417 and H.R.
984) to protect the role of the courts in determining whether the state
secrets privilege properly applies in given cases.

"...To ensure proper oversight and an independent
check on executive discretion, judges must be able to review the
evidence, order the creation of non-privileged substitutes where
appropriate, and assess whether there is sufficient non-privileged
evidence to enable a case to proceed. Legislation is necessary to
implement these key reforms."

To view the full text of the letter, go to: https://www.constitutionproject.org/manage/file/342.pdf

Yesterday, the Constitution Project issued a press release along
these same lines, welcoming the positive first step but calling for
legislative action in Congress. To see the release, go to: https://www.constitutionproject.org/NewsDetail.asp?id=417

In 2007, the Constitution Project released a report signed by a
broad bipartisan coalition that endorsed reforming the state secrets
privilege. The report is available at: https://www.constitutionproject.org/manage/file/52.pdf