[Senate Report 110-442]
[From the U.S. Government Publishing Office]
Calendar No. 938
110th Congress Report
SENATE
2d Session 110-442
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STATE SECRETS PROTECTION ACT
_______
August 1, 2008.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 2533]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 2533), to enact a safe, fair, and responsible state
secrets privilege Act, having considered the same, reports
favorably thereon, with an amendment, and recommends that the
bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of the State Secrets Protection Act.......2
II. History of the Bill and Committee Consideration.................13
III. Section-by-Section Summary of the Bill..........................15
IV. Congressional Budget Office Cost Estimate.......................35
V. Regulatory Impact Evaluation....................................36
VI. Conclusion......................................................36
VII. Minority Views of Senators Hatch, Grassley, Kyl, Sessions, Graham,
Cornyn, Brownback and Coburn....................................37
VIII.Changes to Existing Law Made by the Bill, as Reported...........47
I. Background and Purpose of the State Secrets Protection Act
A. BACKGROUND AND NEED FOR THE LEGISLATION
The ``state secrets privilege'' is a common law rule of
evidence that the Federal Government can invoke to prevent
materials from being publicly disclosed in civil court
proceedings, if the Government establishes that such disclosure
would harm the Nation. In the early 1970s, Congress considered
including a state secrets provision in the Federal Rules of
Evidence, but it ultimately decided not to include any
privileges.\1\ Although numerous laws govern the handling of
classified documents and other information that may implicate
state secrets in specific contexts, the state secrets privilege
has never been codified in statute.
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\1\See Louis Fisher, In the Name of National Security: Unchecked
Presidential Power and the Reynolds Case 141-44 (2006); Robert M.
Chesney, State Secrets and the Limits of National Security Litigation,
75 Geo. Wash. L. Rev. 1249, 1292 (2007).
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The Supreme Court addressed the state secrets privilege at
length for the first (and last) time in United States v.
Reynolds,\2\ a 1953 tort suit brought by widows of civilian
engineers who died in an Air Force plane crash. The Reynolds
decision has been criticized as internally contradictory and
excessively deferential to the Executive,\3\ and commentators
dispute the extent to which it is followed by lower courts
today.\4\ Nevertheless, it remains the foundational case on the
privilege and the starting point for judicial review of
privilege claims. As one commentator describes it, the
analytical framework established in Reynolds comprises several
basic principles:
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\2\345 U.S. 1 (1953).
\3\See, e.g., Louis Fisher, In the Name of National Security:
Unchecked Presidential Power and the Reynolds Case (2006); Neil
Kinkopf, The State Secrets Problem: Can Congress Fix It?, 80 Temp. L.
Rev. 489, 492-93 (2007); William G. Weaver & Danielle Escontrias,
Origins of the State Secrets Privilege 57-66 (Feb. 10, 2008)
(unpublished manuscript), available at http://papers.ssrn.com/
abstract=1079364; Justin Florence & Matthew Gerke, State Your Secrets:
The Smart Way Around Telecom Immunity, Slate, Nov. 14, 2007, http://
www.slate.com/id/2177962.
\4\See, e.g., Louis Fisher, Congressional Access to National
Security Information, 45 Harv. J. on Legis. 219, 220 (2008) (``Federal
courts vary widely in interpreting their duties when the Executive
Branch claims [the state secrets] privilege. Some courts insist that
the trial judge should receive the disputed documents and examine them
in camera. Others adopt judicial standards ranging from `deference' to
`utmost deference' to treating the privilege as an `absolute.'''
(internal citations omitted)); Carrie Newton Lyons, The State Secrets
Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis &
Clark L. Rev. 99, 132 (2007) (describing ``deviations from Reynolds''
that are ``interfering with the opportunity to pursue claims of
violations of private and public constitutional rights''); John Cary
Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell L.
Rev. 1593, 1597 (2007) (``Have the executive branch's recent assertions
of the state secrets privilege broken from the doctrinal moorings of
the Reynolds decision? Yes. * * * [T]he state secrets doctrine has been
expanded beyond all reason * * *.'').
(a) the claim of privilege must be formally asserted
by the head of the department charged with
responsibility for the information; (b) the reviewing
court has the ultimate responsibility to determine
whether disclosure of the information in issue would
pose a ``reasonable danger'' to national security; (c)
the court should calibrate the extent of deference it
gives to the Executive's assertion with regard to the
plaintiff's need for access to the information; (d) the
court can personally review the sensitive information
on an in camera, ex parte basis if necessary; and (e)
once the privilege is found to attach, it is absolute
and cannot be overcome by a showing of need or
offsetting considerations.\5\
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\5\Robert M. Chesney, State Secrets and the Limits of National
Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1251-52 (2007).
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.\6\ Facing
allegations of unlawful Government conduct ranging from
domestic warrantless surveillance,\7\ to employment
discrimination,\8\ to retaliation against whistleblowers,\9\ to
torture and ``extraordinary rendition,''\10\ 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. 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,''\11\
and that a strong public perception has emerged that sees the
privilege as a tool for Executive abuse. The state secrets
privilege ``has long been the subject of academic
criticism,''\12\ but the criticism has escalated dramatically
and aroused widespread concern. Indeed, in the burgeoning
literature on the privilege, it is hard to find a single
positive view on the current state of the law.\13\
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\6\See William G. Weaver & Robert M. Pallitto, State Secrets and
Executive Power, 120 Pol. Sci. Q. 85, 101 (2005) (``Use of the state
secrets privilege in courts has grown significantly over the last
twenty-five years. In the twenty-three years between the decision in
Reynolds and the election of Jimmy Carter, in 1976, there were four
reported cases in which the Government invoked the privilege. Between
1977 and 2001, there were a total of fifty-one reported cases in which
courts ruled on invocation of the privilege.''); Scott Shane, Invoking
Secrets Privilege Becomes a More Popular Legal Tactic by U.S., N.Y.
Times, June 4, 2006, at A32 (describing recent cases); Scholars' Letter
to Senate Judiciary Committee 1 (Feb. 12, 2008) (``Although the
privilege was asserted sparingly over the first few decades of its
existence, it has been raised with increasing frequency over the past
twenty years by both Democratic and Republican administrations. The
privilege has been cited not only as grounds for withholding evidence,
but also as a basis for the immediate dismissal, prior to discovery, of
entire categories of cases challenging the legality of executive
conduct.'').
\7\See, e.g., Am. Civil Liberties Union v. Nat'l Sec. Agency, 493
F.3d 644 (6th Cir. 2007), cert. denied, 128 S. Ct. 1334 (2008); Al-
Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007);
Terkel v. AT&T Corp., 441 F. Supp. 2d 899 (N.D. Ill. 2006); Hepting v.
AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006).
\8\See, e.g., Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005),
cert. denied sub nom Sterling v. Goss, 546 U.S. 1093 (2006).
\9\See, e.g., Edmonds v. U.S. Dep't of Justice, 323 F. Supp. 2d 65
(D.D.C. 2004).
\10\See, e.g., El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va.
2006), aff'd 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373
(2007); Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006); Mohamed
v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008).
\11\Amanda Frost, The State Secrets Privilege and Separation of
Powers, 75 Fordham L. Rev. 1931, 1950 (2007). Professor Robert Chesney
has argued that ``that the Bush administration does not differ
qualitatively from its predecessors in its use of the privilege, which
since the early 1970s has frequently been the occasion for abrupt
dismissal of lawsuits alleging government misconduct.'' Robert M.
Chesney, State Secrets and the Limits of National Security Litigation,
75 Geo. Wash. L. Rev. 1249, 1249 (2007); see also id. (``I also
conclude that the quantitative inquiry serves little purpose in light
of variation in the number of occasions for potential invocation of the
privilege from year to year.''). Other scholars dispute this
contention. See, e.g., Frost, supra, at 1939-40 (``T]he Bush
Administration's recent assertion of the privilege differs from past
practice in that it is seeking blanket dismissal of every case
challenging the constitutionality of specific, ongoing government
programs. In comparison, the government responded to lawsuits brought
in the 1970s and 1980s challenging its warrantless surveillance
programs by seeking to limit discovery, and only rarely filed motions
to dismiss the entire litigation. The current practice is thus
unique.'' (internal citation omitted)); Meredith Fuchs, Judging
Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy,
58 Admin. L. Rev. 131, 134 (2006) (``In the courts, the government has
dramatically increased use of potent litigation tactics such as motions
to dismiss lawsuits on the basis of state secrets privilege.''); John
Cary Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell
L. Rev. 1593, 1598 (2007) (``The state secrets doctrine is quickly
becoming an additional and almost-impermeable immunity doctrine * *
*.''); William G. Weaver & Robert M. Pallitto, State Secrets and
Executive Power, 120 Pol. Sci. Q. 85, 109 (2005) (``[R]ecent cases
indicate that Bush administration lawyers are using the privilege with
offhanded abandon.''); see also Letter from William G. Weaver,
Associate Professor, University of Texas at El Paso, and Danielle
Escontrias to Senator Kennedy (Feb. 8, 2008) (disputing Professor
Chesney's methodology and conclusions).
\12\Robert M. Chesney, State Secrets and the Limits of National
Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1267 n.113 (2007)
(providing numerous citations).
\13\See Michael H. Page, Note, Judging Without the Facts: A
Schematic for Reviewing State Secrets Privilege Claims, 93 Cornell L.
Rev. (forthcoming 2008) (noting that ``[c]ommentators have almost
universally criticized the state secrets privilege'' and that ``[m]any
commentators have criticized the courts for being overly deferential to
the government's claims of privilege'' and providing citations).
Examples of recent critiques include Louis Fisher, In the Name of
National Security: Unchecked Presidential Power and the Reynolds Case
chs. 7-8 (2006); Timothy Casey, Electronic Surveillance and the Right
To Be Secure, 41 U.C. Davis L. Rev. 977, 1024-25 (2008); Amanda Frost,
The State Secrets Privilege and Separation of Powers, 75 Fordham L.
Rev. 1931 (2007); Lisa Graves, Ten Questions: Responses of Lisa Graves,
33 Wm. Mitchell L. Rev. 1619, 1622-23 (2007); Neil Kinkopf, The State
Secrets Problem: Can Congress Fix It?, 80 Temp. L. Rev. 489 (2007);
Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope
Through Government Misuse, 11 Lewis & Clark L. Rev. 99 (2007); John
Cary Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell
L. Rev. 1593, 1597-99 (2007); D.A. Jeremy Telman, Our Very Privileged
Executive: Why the Judiciary Can (and Should) Fix the State Secrets
Privilege, 80 Temp. L. Rev. 499 (2007); David C. Vladeck, Litigating
National Security Cases in the Aftermath of 9/11, 2 J. Nat'l Security
L. & Pol'y 165, 186-92 (2006); William G. Weaver & Robert M. Pallitto,
State Secrets and Executive Power, 120 Pol. Sci. Q. 85 (2005); Robyn
Blumner, Injustice Hides Behind Badge of Security, St. Petersburg
Times, Feb. 10, 2008, at 5P; Susan Burgess, Cases Without Courts, News
Media & L., July 1, 2006, at 32; Editorial, Privileged Tyranny, Daytona
News-J., Mar. 13, 2008, at A4; Editorial, Secrets and Rights, N.Y.
Times, Feb. 2, 2008, at A18; Editorial, Secure Lawsuits, Wash. Post,
Mar. 6, 2008, at A20; Editorial, What's a Secret?, Wash. Post, Apr. 11,
2008, at A20; Editorial, Whose Privilege?, N.Y. Times, Apr. 18, 2008,
at A24; Bruce Fein, State Secrets Abuse, Wash. Times, Mar. 13, 2007, at
A16; Justin Florence & Matthew Gerke, State Your Secrets, Slate, Nov.
14, 2007, http://www.slate.com/id/2177962; Henry Lanman, Secret
Guarding, Slate, May 22, 2006, http://www.slate.com/id/2142155; Ben
Wizner, Shielded by Secrecy, L.A. Times, Feb. 14, 2008, at A25.
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One line of criticism has emphasized the lack of uniformity
in judicial review of privilege claims, and the confusion and
uncertainty this invites. For several decades, Congress has
provided procedures to govern the use of sensitive national
security evidence under the Classified Information Procedures
Act (``CIPA''),\14\ the Freedom of Information Act
(``FOIA''),\15\ and the Foreign Intelligence Surveillance Act
(``FISA'').\16\ Yet, with only a single ambiguous Supreme Court
decision from the 1950s to guide them,\17\ lower courts have
been taking disparate approaches when faced with a claim of the
state secrets privilege. The Supreme Court has declined to
intervene.\18\ As a result, the courts have reached
inconsistent results, and litigants have been left to
``flounder under the ad hoc procedures and varying standards
employed by the courts today.''\19\
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\14\18 U.S.C. app. 3 Sec. Sec. 1-16 (2000).
\15\5 U.S.C. Sec. 552 (2000).
\16\50 U.S.C. Sec. Sec. 1801-1811 (2000).
\17\See supra note 4 and accompanying text; see also William G.
Weaver & Danielle Escontrias, Origins of the State Secrets Privilege 68
(Feb. 10, 2008) (unpublished manuscript), available at http://
papers.ssrn.com/abstract=1079364 (``[T]he decision in Reynolds is
devoid of policy, theory, or principles to guide lower courts.'').
\18\See Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d
644 (6th Cir. 2007), cert. denied, 128 S. Ct. 1334 (2008); El-Masri v.
Tenet, 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373
(2007).
\19\Scholars' Letter to Senate Judiciary Committee 2 (Feb. 12,
2008); see also Examining the State Secrets Privilege: Protecting
National Security While Preserving Accountability, Hearing before the
S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (statement of
Patricia M. Wald) (explaining that ``there has not been uniformity in
the case law surrounding what the judges should do in administering the
privilege'' and stating that it would ``be helpful to [judges] to have
a protocol, to have a series of steps they must go forward with * * *
[to] produce more uniform results''); Examining the State Secrets
Privilege: Protecting National Security While Preserving
Accountability, Hearing before the S. Comm. on the Judiciary, 110th
Cong. (Feb. 13, 2008) (prepared statement of H. Thomas Wells, Jr.,
President-Elect, American Bar Association) (``Courts have been required
to evaluate [claims of the state secrets] privilege without the benefit
of statutory guidance or clear precedent. This has resulted in the
application of inconsistent standards and procedures in determinations
regarding the applicability of the privilege.''); Letter from Michael
W. Macleod-Ball & Michael German, Am. Civil Liberties Union, to
Senators Patrick Leahy and Arlen Specter 3 (Apr. 2, 2008) (lamenting
the ``substantial confusion in the lower courts regarding both when the
privilege properly may be invoked, and what precisely the privilege may
be invoked to protect,'' as well as regarding ``how deeply a court must
probe the government's claim of the privilege, and what, exactly, the
court must examine in assessing a privilege claim'').
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Furthermore, some Federal courts have viewed assertions of
the privilege as a virtual ``automatic win'' for the
Government. Courts have refused to review key pieces of
allegedly privileged evidence, given unwarranted deference to
the executive branch on the danger of disclosure, upheld claims
of state secrets even when the purported secrets were publicly
available, and dismissed lawsuits at the pleadings stage,
without considering any evidence at all.\20\ Scholars have
found that courts have required in camera inspection of
allegedly privileged documents in fewer than one-third of the
reported cases in which the privilege has been invoked, and
that this proportion is declining.\21\ As a result, ``even
though the Reynolds case held that `judicial control over the
evidence in a case cannot be abdicated to the caprice of
executive officers,' the practical effect of the decision [has
been] to cause precisely that result.''\22\ When courts fail to
scrutinize assertions of the privilege, they leave open the
possibility that the privilege will be used to cover up
Government wrongdoing, thereby denying justice to litigants and
giving the executive branch the ability to violate statutes and
constitutional rights with impunity.
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\20\The controversial El-Masri decision, for example, featured each
of these practices. See El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D.
Va. 2006), aff'd 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct.
373 (2007); see also Editorial, Supreme Disgrace, N.Y. Times, Oct. 11,
2007, at A30 (excoriating the Supreme Court for denying Mr. El-Masri's
petition for certiorari and observing that the state secrets privilege
``was originally intended to shield specific evidence in a lawsuit
filed against the government'' and ``was never designed to dictate
dismissal of an entire case before any evidence is produced'').
\21\William G. Weaver & Robert M. Pallitto, State Secrets and
Executive Power, 120 Pol. Sci. Q. 85, 101 (2005).
\22\Id. (quoting United States v. Reynolds, 345 U.S. 1, 9-10
(1953)); see also William G. Weaver & Danielle Escontrias, Origins of
the State Secrets Privilege 65-66 (Feb. 10, 2008) (unpublished
manuscript), available at http://papers.ssrn.com/abstract=1079364 (``It
is difficult to conclude other than that courts have simply abandoned
the field of a contentious area of law.'').
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The pitfalls of such extreme deference to the executive
branch can be seen in United States v. Reynolds,\23\ the very
case that serves as the basis for privilege doctrine to this
day. In Reynolds, the widows of the deceased B-29 crew members
asked to see the Government's accident report. Citing the state
secrets privilege, the Government refused to turn it over. The
Supreme Court accepted the executive branch's assertion that
the accident report contained references to secret electronic
equipment and refused to allow the report to be considered as
evidence, without ever looking at the report itself.
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\23\345 U.S. 1 (1953).
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When the accident report was declassified in the 1990s, it
turned out that it did not contain any references to secret
electronic equipment--but it did contain embarrassing
information revealing Government negligence (that the plane
lacked standard safeguards to prevent the engine from
overheating).\24\ The notion that the entire report constituted
a state secret was thrown into serious doubt. As summarized by
Louis Fisher, Specialist in Constitutional Law at the Library
of Congress and the leading expert on the Reynolds case:
``Instead [of looking at the disputed documents], the Court
relied entirely on assertions by executive officials about the
content of the documents. We now know, by looking at the
documents, that they contain no state secrets. The Court was
misled by the executive branch and allowed itself to be
misled.''\25\
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\24\See Louis Fisher, In the Name of National Security: Unchecked
Presidential Power and the Reynolds Case (2006).
\25\Examining the State Secrets Privilege: Protecting National
Security While Preserving Accountability, Hearing before the S. Comm.
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of
Louis Fisher). The decedents' families recently tried to have their
lawsuit reopened on the basis of fraud on the court, but their petition
was denied on account of the high bar to overcoming judicial finality.
Herring v. United States, 2004 WL 2040272 (E.D. Pa. Sept. 10, 2004),
aff'd 424 F.3d 384 (3d Cir. 2005), cert. denied 547 U.S. 1123 (2006).
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As use of the privilege has expanded and criticism has
grown, public confidence has suffered. Mistrust of the
privilege breeds cynicism and suspicion about the national
security activities of the U.S. Government, and it causes
Americans to lose respect for the notion of legitimate state
secrets. Perversely, overuse of the privilege may undermine
national security by making those with access to sensitive
information more likely to release it. As one former CIA
officer stated recently: ``There will finally be an instance
where you've cried `state secrets' so many times that [no one
will] believe it anymore, and potentially something that is a
state secret will get out.''\26\
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\26\Patrick Radden Keefe, State Secrets: A Government Misstep in a
Wiretapping Case, New Yorker, Apr. 28, 2008, at 28; see also Report of
the Commission on Protecting and Reducing Government Secrecy, S. Doc.
No. 105-2, at 8 (1997) (``As the scope of secrecy grows * * *, the
prospect for leaks--deliberate releases of classified information,
nearly always on an anonymous basis--grows as well. Secrets become
vulnerable to betrayal, often from high in the chain of command; this
in turn promotes greater disrespect for the system itself.'').
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In response to these concerns, many have called on Congress
to provide guidance to the judiciary and the executive branch
on use of the privilege. The American Bar Association issued a
report ``urg[ing] Congress to enact legislation governing
federal civil cases implicating the state secrets
privilege.''\27\ The bipartisan Constitution Project found that
``legislative action [on the privilege] is essential to restore
and strengthen the basic rights and liberties provided by our
constitutional system of government.''\28\ A letter on the
privilege sent to Congress by leading constitutional scholars
concluded that there ``is a need for new rules designed to
protect the system of checks and balances, individual rights,
national security, fairness in the courtroom, and the adversary
process.''\29\ Patricia M. Wald, former Chief Judge of the D.C.
Circuit, testified that ``[t]here is a wide consensus in the
legal community'' that Congress should prescribe regulations on
the privilege, and that ``[t]he time is now ripe for such
legislation.''\30\
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\27\Am. Bar Ass'n, Report to the House of Delegates 1 (Revised
Report 116A) (2007).
\28\Constitution Project, Reforming the State Secrets Privilege, at
ii (2007).
\29\Scholars' Letter to Members of Congress 3-4 (Oct. 4, 2007).
\30\Examining the State Secrets Privilege: Protecting National
Security While Preserving Accountability, Hearing before the S. Comm.
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of
Patricia M. Wald).
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Courts and scholars have debated the origins of the
privilege\31\ and whether it is a ``mere'' common law rule or
whether it also has some foundation in the Constitution,
notwithstanding the lack of explicit textual or historical
support for such a view.\32\ Regardless of whether the
privilege has any constitutional dimension, however, there is
widespread agreement that Congress has constitutional authority
to regulate the privilege,\33\ based on its Article III powers
to set rules of procedure and evidence for the Federal
courts,\34\ its Article I powers related to national security
and foreign affairs,\35\ and the Necessary and Proper
Clause.\36\ Article II is not the only relevant part of the
Constitution. Even if the state secrets privilege were in some
respect ``rooted'' in our constitutional structure,\37\ there
is no bar to Congress, using its own authorities rooted in the
Constitution, exercising concurrent authority over the
protection of state secrets or providing rules for
implementation of the privilege. Congress has passed numerous
statutes regulating judicial proceedings that deal with
national security information, such as the Classified
Information Procedures Act, the Freedom of Information Act, and
the Foreign Intelligence Surveillance Act, none of which has
ever faced a successful constitutional challenge.\38\
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\31\See, e.g., In re United States, 872 F.2d 472, 474 (D.C. Cir.
1989) (``[T]he exact origins of the privilege are not certain * *
*.''); Robert M. Chesney, State Secrets and the Limits of National
Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1270-1308 (2007)
(tracing the history of the privilege); William G. Weaver & Danielle
Escontrias, Origins of the State Secrets Privilege (Feb. 10, 2008)
(unpublished manuscript), available at http://papers.ssrn.com/
abstract=1079364 (locating the origins of the privilege in English
crown prerogative).
\32\Compare United States v. Reynolds, 345 U.S. 1, 6 (1953)
(stating that preclusive Executive Branch assertions of the privilege
have ``constitutional overtones which we find it unnecessary to pass
upon''); and Robert M. Chesney, State Secrets and the Limits of
National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1309-10
(2007) (suggesting that the privilege has a ``constitutional core
surrounded by a revisable common-law shell''); with Reynolds, 345 U.S.
at 6-7 (describing the privilege as ``well established in the law of
evidence'' (emphasis added)); Monarch Assur. P.L.C. v. United States,
244 F.3d 1356, 1358 (Fed. Cir. 2001) (describing the ``common-law state
secrets privilege''); Kasza v. Browner, 133 F.3d 1159, 1165 (9th Cir.
1998) (describing the privilege as ``a common law evidentiary privilege
that allows the government to deny discovery of military secrets''); In
re United States, 872 F.2d 472, 474 (D.C. Cir. 1989) (describing the
privilege as ``a common law evidentiary rule''); and Fed R. Evid. 501
notes of Committee on the Judiciary, H. Rep. No. 93-650 (describing the
``secrets of state'' privilege as one of nine ``nonconstitutional
privileges'' that the Supreme Court submitted to Congress). In United
States v. Nixon, 418 U.S. 683, 708 (1974), the Supreme Court stated
that the presidential communications privilege is ``inextricably rooted
in the separation of powers under the Constitution,'' but the Court has
never made any comparable pronouncement on the state secrets privilege.
\33\See, e.g., Am. Bar Ass'n, Report to the House of Delegates 1
(Revised Report 116A) (2007) (analogizing to the Classified Information
Procedures Act in urging Congress to enact legislation on the
privilege); Constitution Project, Reforming the State Secrets Privilege
14 (2007) (asserting that ``our constitutional system of checks and
balances'' will be jeopardized unless Congress enacts legislation on
the privilege); Amanda Frost, The State Secrets Privilege and
Separation of Powers, 75 Fordham L. Rev. 1931, 1932-33, 1951-56 (2007)
(stating that, in this area as in others, ``Congress's power to confer
jurisdiction permits Congress to work together with courts to police
the activities of the executive branch''); Neil Kinkopf, The State
Secrets Problem: Can Congress Fix It?, 80 Temp. L. Rev. 489, 494-98
(2007) (cataloguing constitutional ``powers [that] provide a strong
basis for Congress to respond to the growing problems raised by the
state secrets privilege''); Examining the State Secrets Privilege:
Protecting National Security While Preserving Accountability, Hearing
before the S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008)
(statement of Louis Fisher) (``Congress has all the legitimacy in the
world to provide the guidelines [on judicial review of the
privilege].''); id. (statement of Robert Chesney) (``The power to
regulate, I think it's clearly within the constitutional power of
Congress to create rules that will govern the process of the privilege,
and so on and so forth.''); Letter from Aziz Huq and Emily Berman,
Brennan Center for Justice, to David Pozen 2-4 (Apr. 3, 2008)
(explaining why, even assuming arguendo that the privilege is
constitutionally based, ``state secrets legislation would not trench on
Article II authority''). Cf. Herbert v. Lando, 441 U.S. 153, 175 (1979)
(``Evidentiary privileges in litigation are not favored, and even those
rooted in the Constitution must give way in proper circumstances.''
(citing United States v. Nixon, 418 U.S. 683 (1974)); Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring) (observing that, in matters of national security as in all
others, the President's power to pursue a course of action is
diminished to the extent that Congress regulates that action pursuant
to its constitutional authorities).
\34\U.S. Const. art. III, Sec. 2, cl. 2 (expressly granting
Congress the power to enact ``Regulations'' concerning the jurisdiction
of Federal courts); see also Dickerson v. United States, 530 U.S. 428,
437 (2000) (``Congress retains the ultimate authority to modify or set
aside any judicially created rules of evidence and procedure that are
not required by the Constitution.''); Sibbach v. Wilson & Co., 312 U.S.
1, 9-10 (1941) (``Congress has undoubted power to regulate the practice
and procedure of federal courts * * *.'').
\35\See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2773-74 (2006)
(discussing the enumerated powers granted to Congress in a time of
war); Hamdi v. Rumsfeld, 542 U.S. 507, 582 (2004) (Thomas, J.,
dissenting) (noting Congress's ``substantial and essential role in both
foreign affairs and national security''); Afroyim v. Rusk, 387 U.S.
253, 256 (1967) (reaffirming that ``Congress has an implied power to
deal with foreign affairs as an indispensable attribute of
sovereignty''); Aptheker v. Sec'y of State, 378 U.S. 500, 509 (1964)
(``That Congress under the Constitution has power to safeguard our
Nation's security is obvious and unarguable.''); Letter from 23
Constitutional Law Scholars to Congress at 2, 6, available at http://
www.law.duke.edu/features/pdf/congress_power_letter.pdf (cataloguing
the ``extensive powers relating to war'' explicitly granted by the
Constitution to Congress and explaining the Supreme Court's consistent
reliance on Justice Jackson's concurrence in Youngstown Sheet & Tube
Co. v. Sawyer to require the President to comply with applicable
statutory limits in wartime); see also Hamdi, supra, 542 U.S. at 536
(``Whatever power the United States Constitution envisions for the
Executive in its exchanges with other nations or with enemy
organizations in times of conflict, it most assuredly envisions a role
for all three branches when individual liberties are at stake.'').
\36\U.S. Const. art. I, Sec. 8, cl. 18.
\37\This Administration and recent predecessors have relied heavily
on Department of Navy v. Egan, 484 U.S. 518 (1988), for the proposition
that statutes regulating the disclosure of sensitive national security
information may raise constitutional concerns. See David J. Barron &
Martin S. Lederman, The Commander in Chief at the Lowest Ebb--A
Constitutional History, 121 Harv. L. Rev. 941, 1084-85 (2008)
(providing recent examples). However, the Supreme Court's statement in
Egan that ``unless Congress specifically has provided otherwise, courts
traditionally have been reluctant to intrude upon the authority of the
Executive in military and national security affairs,'' 484 U.S. at 530
(emphasis added), plainly implies that Congress possesses the
constitutional authority to pass such regulations. It is also
instructive to note that the Court in Egan appears to have adopted this
formulation from the Justice Department itself, which argued in its
brief that ``[a]bsent an unambiguous grant of jurisdiction by Congress,
courts have traditionally been reluctant to intrude upon the authority
of the executive in military and national security affairs.'' Brief for
the Petitioner at 21, Egan, 484 U.S. 518 (1988) (No. 86-1552) (emphasis
added).
\38\In July 21, 2008, remarks to the American Enterprise Institute,
Attorney General Michael Mukasey endorsed legislative intervention in
cases implicating national security when there exists a ``serious risk
of inconsistent rulings and considerable uncertainty,'' and noted that
congressional action to provide procedures in national security cases
is ``well within the historic role and competence of Congress.'' Att'y
Gen. Michael B. Mukasey, Speech at the American Enterprise Institute
for Public Policy Research (July 21, 2008), available at http://
www.usdoj.gov/ag/speeches/2008/ag-speech-0807213.html. Although he was
proposing action in another setting, the Attorney General's arguments
likewise support legislation to standardize and clarify the procedures
governing the state secrets privilege.
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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. In
introducing the bill, Senator Kennedy remarked:
[In recent years], use of the state secrets privilege
has dramatically increased--and the harmful
consequences of its irregular application by courts
have become painfully clear.
Injured plaintiffs have been denied justice; courts
have failed to address fundamental questions of
constitutional rights and separation of powers; and
confusion pervades this area of law. The Senate debate
on reforming the Foreign Intelligence Surveillance Act
has become far more difficult than it ought to be,
because many believe that if courts hear lawsuits
against telecommunications companies, the courts will
be unable to deal fairly and effectively with the
Government's invocation of the privilege.
Studies show that the Bush administration has raised
the privilege in over 25% more cases per year than
previous administrations, and has sought dismissal in
over 90% more cases. As one scholar recently noted,
this administration has used the privilege to ``seek
blanket dismissal of every case challenging the
constitutionality of specific, ongoing government
programs'' related to its war on terrorism, and as a
result, the privilege is impairing the ability of
Congress and the judiciary to perform their
constitutional duty to check Executive power.
Another leading scholar recently found that ``in
practical terms, the state secrets privilege never
fails.'' Like other commentators, he concluded that
``the state secrets privilege is the most powerful
secrecy privilege available to the president,'' and
``the people of the United States have suffered
needlessly because the law is now a servant to
executive claims of national security.''
In 1980, Congress enacted the Classified Information
Procedures Act (CIPA) to provide Federal courts with
clear statutory guidance on handling secret evidence in
criminal cases. For almost 30 years, courts have
effectively applied that law to make criminal trials
fairer and safer. During that period, Congress has also
regulated judicial review of national security
materials under the Foreign Intelligence Surveillance
Act and the Freedom of Information Act. Because of
these laws, Federal judges regularly review and handle
highly classified evidence in many types of cases.
Yet in civil cases, litigants have been left behind.
Congress has failed to provide clear rules or standards
for determining whether evidence is protected by the
state secrets privilege. We've failed to develop
procedures that will protect injured parties and also
prevent the disclosure of sensitive information.
Because use of the state secrets privilege has
escalated in recent years, there's an increasing need
for the judiciary and the Executive to have clear,
fair, and safe rules.\39\
---------------------------------------------------------------------------
\39\154 Cong. Rec. S198 (daily ed. Jan. 23, 2008) (statement of
Sen. Kennedy).
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On the same occasion, Senator Specter remarked:
Senator Kennedy and I are introducing this bipartisan
bill in order to harmonize the law applicable in cases
involving the executive branch's invocation of the
privilege. This bill is timely for several reasons.
First, the use of the privilege appears to be on the
rise in the post-September 11, 2001, era, which has
generated new public attention and concern about its
legitimacy. Second, there is some disparity among the
district and appellate court opinions analyzing the
privilege, particularly as to the question of whether
courts must independently review the allegedly
privileged evidence. Finally, a codified test for
evaluating state secrets that requires courts to review
the evidence in camera--a Latin phrase meaning ``in the
judge's private chambers''--will help to reassure the
public that the claims are neither spurious nor
intended to cover up alleged Government misconduct.
With greater checks and balances and greater
accountability, there is a commensurate increase in
public confidence in our institutions of Government.
In view of its increasing use, inconsistent
application, and public criticism, we think the time is
ripe to pass legislation codifying standards on the
state secrets privilege. Our bill builds upon proposals
by the American Bar Association and legal scholars who
have called upon Congress to legislate in this
area.\40\
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\40\154 Cong. Rec. S199 (daily ed. Jan. 23, 2008) (statement of
Sen. Specter).
At the Judiciary Committee's hearing on the state secrets
---------------------------------------------------------------------------
privilege, in his opening statement, Chairman Leahy noted:
The state secrets privilege has been used in recent years
to stymie litigation at its very inception in cases alleging
egregious Government misconduct, such as extraordinary
rendition and warrantless eavesdropping on the communications
of American citizens. Reflecting on recent state secrets
litigation, The New York Times has observed: ``To avoid
accountability, [the Bush] administration has repeatedly sought
early dismissal of lawsuits that might finally expose
government misconduct, brandishing flimsy claims that going
forward would put national security secrets at risk.''
The clearest example of the state secrets privilege short-
circuiting litigation is the 2006 case of Khaled El-Masri. Mr.
El-Masri, a German citizen of Lebanese descent, alleged that he
was kidnapped on New Year's Eve in 2003 in Macedonia, and
transported against his will to Afghanistan, where he was
detained and tortured as part of the Bush administration's
extraordinary rendition program. He sued the Government over
his alleged detention and harsh treatment. A district court
judge in Virginia dismissed the entire lawsuit on the basis of
an ex parte declaration from the Director of the CIA and
despite the fact that the Government has admitted that the
rendition program exists. Mr. El-Masri has no other remedy. Our
justice system is off limits to him, and no judge ever reviewed
any of the actual evidence.
The Government has also asserted the state secrets
privilege in the litigation over the warrantless wiretapping of
Americans that took place for more than five years. There, a
district court judge has rejected the Government's claim that
the very subject matter at issue was a state secret, but the
Government is appealing.
The state secrets privilege serves important goals where
properly invoked. But there are serious consequences for
litigants and for the American public when the privilege is
used to terminate litigation alleging serious Government
misconduct. For the aggrieved parties, it means that the
courthouse doors are closed--forever--regardless of the
severity of their injury. They will never have their day in
court. For the American public, it means less accountability,
because there will be no judicial scrutiny of improper actions
of the Executive, and no check or balance.
* * * * * * *
Secrecy can be important to national security, but it can
also deprive the American people of their ability to judge the
effectiveness of their Government on national security matters.
It is critical that Federal judges not abdicate their role in
our system of checks and balances as a check on the
Executive.\41\
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\41\Statement of Senator Patrick Leahy (Feb 13, 2008), http://
leahy.senate.gov/press/200802/021308a.html.
---------------------------------------------------------------------------
B. LEGISLATIVE INTENT
The State Secrets Protection Act allows the United States
to preserve its commitment to constitutional rights and the
rule of law, without compromising its national defense or
foreign policy objectives. Rather than invent new tools or
procedures for Federal courts in reviewing claims of the state
secrets privilege, the bill draws on existing practices to make
judicial review more regular and more rigorous--and to protect
all legitimate state secrets. As the original co-sponsors of
the bill explained in a letter to Senate colleagues:
The [State Secrets Protection] Act recognizes that state
secrets must be protected, and it enables the executive branch
to avoid publicly revealing evidence if doing so might disclose
a state secret. Secure judicial proceedings and other
safeguards that have proven effective under CIPA and the
Freedom of Information Act will ensure that the litigation does
not reveal state secrets.
At the same time, the State Secrets Protection Act will
prevent the executive branch from using the privilege to deny
parties their day in court or shield illegal activity that is
not actually sensitive * * *.
* * * * * * *
The State Secrets Protection Act requires courts to
consider evidence for which the privilege is claimed, in order
to determine whether the executive branch has validly invoked
the privilege. It gives parties an opportunity to make a
preliminary case with their own evidence before a lawsuit is
dismissed, and it allows courts to develop solutions to let
lawsuits proceed, such as directing the Government to produce
non-privileged substitutes for secret evidence. Many of these
powers are already available to courts, but they often go
unused.
The Act also draws on CIPA to include provisions for
congressional oversight and expedited interlocutory appeal.\42\
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\42\Letter from Senator Kennedy, Senator Leahy and Senator Specter
to Senate Colleagues (Feb. 25, 2008).
In prescribing rules for judicial review of the state
secrets privilege, the bill seeks to accomplish the following
general goals:
The bill provides a uniform set of procedures for
Federal courts faced with assertions of the state secrets
privilege, promoting clarity, predictability, and fairness in
judicial review of these claims.
The bill codifies many of the best practices that
are already available to courts but that often go unused, such
as in camera hearings, non-privileged substitutes, and special
masters.
The bill requires judges to look at the evidence
that the Government claim is privileged, rather than rely
solely on Government affidavits, so that the privilege is not
abused by the executive branch to cover up information that is
not actually sensitive.
The bill forbids judges from dismissing cases at
the pleadings stage on the basis of the privilege. This makes
clear that the state secrets privilege is an evidentiary rule,
not a justiciability rule, and can only be asserted with
respect to items of evidence that plaintiffs seek in discovery
or intend to disclose in litigation. At the same time, the bill
protects innocent defendants by allowing cases to be dismissed
when privileged evidence would be needed to establish a valid
defense.
The bill gives plaintiffs a chance to make a
preliminary case using evidence they have gathered on their
own.
The bill preserves the adversarial process--and
the truth-seeking function of that process--to the fullest
extent possible consistent with the protection of national
security.
The bill instructs courts to order the Government
to produce non-privileged substitutes for privileged evidence,
when this is possible, to allow cases to go forward safely.
The bill instructs courts to avoid excessively
deferential standards of review and to retain full control over
privilege determinations. This approach rejects a line of
judicial precedent that applies ``utmost deference'' to the
executive branch; the Government's assertions deserve weight
and respect, but they do not deserve a reprieve from the
rigorous, independent judicial scrutiny demanded by our
adjudicatory system.
The bill puts in place numerous security
procedures, including closed hearings, security clearance
requirements, and sealed orders, to ensure that secrets do not
leak out during litigation.
The bill sets reporting requirements to ensure
that Congress stays informed on use of the privilege and can
take corrective action if necessary.
The bill solves the crisis of legitimacy currently
surrounding the privilege, by setting clear rules that take
into account both constitutional and policy considerations.
The judicial review procedures set forth in the bill to
accomplish these goals are discussed in detail below. The major
steps in the process may be summarized as follows:
The Government may assert the privilege to
withhold information in discovery or to prevent the disclosure
of information in litigation. The assertion is made through an
affidavit signed by the head of the relevant agency and
submitted to the court. An unclassified version of the
affidavit must be made public.
The Government must then submit the evidence (or,
in certain situations, a sampling of the evidence) to the court
for in camera review, along with a document index to facilitate
the review.
The court holds a hearing to assist in its
examination of the evidence and to determine the validity of
the state secrets claim. The hearing shall be conducted in
camera unless the only issues to be determined are issues of
law, and a public hearing would not risk disclosure of state
secrets. Based upon its prior review of the evidence, the court
determines whether to conduct the hearing ex parte as well as
in camera. The hearing may be conducted ex parte only if the
court determines that the interests of justice and national
security cannot adequately be protected through less
restrictive measures, including limiting attendance at the
hearing to attorneys with appropriate security clearances,
appointing a guardian ad litem with the necessary security
clearance, or issuing protective orders.
The court may appoint a special master or other
independent advisor to assist it in understanding the evidence
and arguments and in determining whether the evidence is
privileged.
If the court determines that evidence is
privileged, the evidence itself may not be disclosed. However,
if the court determines that it is possible for the Government
to craft a non-privileged substitute for the evidence, the
court shall order the Government to do so. If the Government
refuses, the court shall resolve the disputed issue of fact or
law to which the evidence pertains in the non-Government
party's favor.
After issuing its determination on all claims of
privilege and reviewing all pertinent evidence, the court may
dismiss the case or claim on the basis of the state secrets
privilege only if it determines that it would be impossible to
proceed fairly with a non-privileged substitute for the
privileged evidence, dismissal will not harm national security,
and disclosure of the privileged evidence would be necessary to
the pursuit of a valid defense.
The court's determinations shall be subject to
interlocutory appeal.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
Senators Kennedy, Specter and Leahy introduced S. 2533, the
State Secrets Protection Act, on January 22, 2007. The bill was
referred to the Committee on the Judiciary. Since the bill's
introduction and prior to its Committee consideration, Senators
Feingold, Whitehouse, Webb, Clinton, Dodd, McCaskill, Schumer,
and Biden joined as cosponsors.
B. COMMITTEE CONSIDERATION
On February 13, 2008, Chairman Leahy chaired a Committee
hearing on ``Examining the State Secrets Privilege: Protecting
National Security While Preserving Accountability.'' Testifying
on Panel I was Carl J. Nichols, Deputy Assistant Attorney
General, U.S. Department of Justice, Civil Division. Testifying
on Panel II were the Honorable Patricia M. Wald, former Chief
Judge, U.S. Court of Appeals for the D.C. Circuit; Louis
Fisher, Specialist in Constitutional Law, Law Library of the
Library of Congress; Robert M. Chesney, Associate Professor,
Wake Forest University School of Law; and Michael Vatis,
Partner, Steptoe & Johnson LLP. In addition to the prepared
statements of the witnesses, the following materials were
submitted for the record: October 4, 2007 letter to Congress by
23 scholars of constitutional law; May 31, 2007 statement of
the Constitution Project's Liberty and Security Committee &
Coalition to Defend Checks and Balances on ``Reforming the
State Secrets Privilege''; August 2007 report on state secrets
legislation by the American Bar Association Section of
Individual Rights and Responsibilities and the Association of
the Bar of the City of New York; prepared statement of H.
Thomas Wells, Jr., President-Elect, submitted on behalf of the
American Bar Association; statement of William H. Webster,
former Judge, U.S. District Court for the Eastern District of
Missouri, Judge, U.S. Court of Appeals for the Eighth Circuit,
Director, Federal Bureau of Investigation, and Director of
Central Intelligence; February 8, 2008 letter to Senator
Kennedy from William G. Weaver, Associate Professor, University
of Texas at El Paso, and Danielle Escontrias; prepared
statement of Patricia Reynolds Herring; prepared statement of
Susan Parker Brauner.
The bill was placed on the Committee's agenda for
consideration on February 28, 2008. On April 24, 2008, the
Committee on the Judiciary considered S. 2533.\43\ Senator
Leahy offered a Managers' amendment, in the nature of a
complete substitute, which was adopted by unanimous consent.
This amendment made a number of changes to clarify the use of
security clearances, hearings, congressional reporting, and
other provisions in the bill.
---------------------------------------------------------------------------
\43\The following materials were submitted for the record: April 2,
2008 letter from Louis Fisher (Library of Congress) to Senator Kennedy;
April 2, 2008 letter from Kevin S. Bankston (Electronic Frontier
Foundation), Jon P. Eisenberg (Eisenberg & Hancock LLP), Caroline
Fredrickson (American Civil Liberties Union), and Gregory T. Nojeim
(Center for Democracy & Technology) to Senators Leahy and Specter;
April 2, 2008 letter from Sharon Bradford Franklin and Virginia E.
Sloan (Constitution Project) to Senators Leahy and Specter; April 2,
2008 letter from Michael W. Macleod-Ball and Michael German (American
Civil Liberties Union) to Senators Leahy and Specter; April 2, 2008
letter from Denise A. Cardman (American Bar Association) to Senators
Leahy and Specter; April 3, 2008 letter from Aziz Huq and Emily Berman
(Brennan Center for Justice) to David Pozen; February 12, 2008 letter
to the Senate Committee on the Judiciary by 11 scholars of
constitutional law and national security; April 28, 2008 editorial,
Whose Privilege?, by the New York Times; February 2, 2008 editorial,
Secrets and Rights, by the New York Times; April 11, 2008 editorial,
What's a Secret?, by the Washington Post; and March 6, 2008 editorial,
Secure Lawsuits, by the Washington Post.
---------------------------------------------------------------------------
Senator Feinstein offered an amendment to provide a
standard of review for judges in evaluating assertions of the
state secrets privilege. This amendment was accepted on a
rollcall vote. The vote record is as follows:
TALLY: 18 YEAS, 1 NAY
Yeas (18): Biden (D-DE), Brownback (R-KS), Cardin (D-MD),
Coburn (R-OK), Cornyn (R-TX), Durbin (D-IL), Feingold (D-WI),
Feinstein (D-CA), Graham (R-SC), Grassley (R-IA), Hatch (R-UT),
Kennedy, (D-MA), Kohl (D-WI), Kyl (R-AZ), Leahy (D-VT), Schumer
(D-NY), Sessions (R-AL), Whitehouse (D-RI).
Nays (1): Specter (R-PA).
Senator Hatch offered an amendment to strike the provisions
in the bill relating to attorney security clearances. The
amendment was rejected on a rollcall vote. The vote record is
as follows:
TALLY: 8 YEAS, 10 NAYS, 1 PASS
Yeas (8): Brownback (R-KS), Coburn (R-OK), Cornyn (R-TX),
Hatch (R-UT), Kyl (R-AZ), Graham (R-SC), Grassley (R-IA),
Sessions (R-AL).
Nays (10): Biden (D-DE), Cardin (D-MD), Durbin (D-IL),
Feingold (D-WI), Feinstein (D-CA), Kennedy (D-MA), Kohl (D-WI),
Leahy (D-VT), Schumer (D-NY), Whitehouse (D-RI).
Pass (1): Specter (R-PA).
The Committee then voted to report the State Secrets
Protection Act, as amended, favorably to the Senate. The
Committee proceeded by rollcall vote as follows:
TALLY: 11 YEAS, 8 NAYS.
Yeas (11): Biden (D-DE), Cardin (D-MD), Durbin (D-IL),
Feingold (D-WI), Feinstein (D-CA), Kennedy (D-MA), Kohl (D-WI),
Leahy (D-VT), Schumer (D-NY), Specter (R-PA), Whitehouse (D-
RI).
Nays (8): Brownback (R-KS), Coburn (R-OK), Cornyn (R-TX),
Hatch (R-UT), Kyl (R-AZ), Graham (R-SC), Grassley (R-IA),
Sessions (R-AL).
III. Section-by-Section Summary of the Bill
Section 1. Short title
This section cites the short title of the bill as the
``State Secrets Protection Act.''
Section 2. State secrets protection
This section adds nine sections to title 28 of the United
States Code, as follows.
Section 4051. In a new section 4051 of the United States
Code, the bill sets forth definitions.
First, this section defines ``evidence'' under the bill as
``any document, witness testimony, discovery response,
affidavit, object, or other material'' that could be admissible
or discoverable in court under the Federal rules of evidence or
civil procedure. ``Evidence'' is given this broad definition to
ensure that the state secrets privilege protects sensitive
information from public disclosure at every stage in the
litigation process. Coupled with the provisions in the bill
tying the state secrets privilege to ``evidence,'' this
definition also makes clear that the privilege applies only to
items that might be discoverable or admissible, and does not
apply to abstract concepts, ideas, or assertions or to general
facts.
Second, this section defines a ``state secret'' as ``any
information that, if disclosed publicly, would be reasonably
likely to cause significant harm to the national defense or
foreign relations of the United States.'' The sponsors of the
legislation believe it is important to set a definition of
``state secret,'' so that all courts will evaluate claims of
the state secrets privilege from an identical starting point.
The bill's definition of ``state secret'' is intentionally
broad, in that it covers both national defense and foreign
relations and applies the same standard to both. However, the
definition does not include information that is already
available to the public or that has only a remote chance of
causing harm. Information that is already public should not
qualify as a state secret because its disclosure through the
litigation process would not reveal new facts or insights, and
thus would not be reasonably likely to cause significant harm.
``Public'' disclosure does not encompass the disclosure of
information in the context of the proceedings set forth in the
bill; the bill requires the executive branch to make evidence
available to the court precisely so that the court can
determine whether public disclosure, to the world at large,
would be appropriate. The state secrets privilege, as defined
in this section, does not necessarily apply to every item of
classified information; but that does not mean the information
is ``de-classified.'' Classified materials not found to qualify
as state secrets will still be subject to the ordinary rules
governing the disclosure of classified information in civil
litigation and in other settings.\44\
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\44\In this regard, it is worth noting that there is a longstanding
bipartisan ``consensus that the executive habitually overclassifies''
documents, Adam M. Samaha, Government Secrets, Constitutional Law, and
Platforms for Judicial Intervention, 53 UCLA L. Rev. 909, 940 (2006),
and that recent U.S. history contains numerous examples of executive
branch claims of secrecy that turned out to be greatly exaggerated.
See, e.g., Erwin N. Griswold, Secrets Not Worth Keeping, Wash. Post,
Feb. 15, 1989, at A25 (stating that ``[i]t quickly becomes apparent to
any person who has considerable experience with classified material
that there is massive overclassification and that the principle concern
of the classifiers is not with national security, but rather with
governmental embarrassment of one sort or another,'' and acknowledging
that he had ``never seen any trace of a threat to the national
security'' in the landmark Pentagon Papers case that he litigated as
Solicitor General); see also Report of the Commission on Protecting and
Reducing Government Secrecy: Hearing Before the Comm. on Governmental
Affairs, 105th Cong. app. at 23 (1997) (``It is no secret that the
government classifies too much information.'') (statement of J. William
Leonard, Director, Information Security Oversight Office, National
Archives and Records Administration); Donald Rumsfeld, War of the
Worlds, Wall St. J., July 18, 2005, at A12 (``I have long believed that
too much material is classified across the federal government as a
general rule * * *'').
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The requirements of reasonable likelihood and significant
harm present the court with two distinct inquiries in
evaluating whether information qualifies as a state secret, one
focused on the probability of harm and the other on magnitude
of harm. The probability threshold is needed so that
speculative or unlikely risks do not trigger the privilege. The
magnitude threshold is needed so that insignificant harms do
not trigger it. ``Reasonably likely'' and ``significant harm''
are the standards recommended by many experts in this area of
law, including the American Bar Association, which had input
from the Association's criminal and national security units. In
today's globalized world, almost anything can be argued to
cause potential harm to the national defense or foreign
relations, and improbable or insignificant harms should not be
the basis for withholding evidence that may be critical for the
accuracy and integrity of litigation. Tests for probability and
magnitude are needed as a check against overly expansive
executive branch characterizations of national defense and
foreign relations interests.
The Supreme Court never clearly defined ``state secret'' in
United States v. Reynolds or in subsequent cases, but it
suggested in Reynolds that ``the occasion for the privilege is
appropriate'' when the Government ``satisf[ies] the court, from
all the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not
be divulged.''\45\ Many courts have followed Reynolds in
adopting this definition, but some courts have used other
formulations, for example, that the privilege allows the
Government to withhold information from discovery when
disclosure would be ``inimical to the national security,''\46\
would ``jeopardize national security,''\47\ or would
``adversely affect national security.''\48\
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\45\345 U.S. 1, 10 (1953).
\46\See, e.g., In re Sealed Case, 494 F.3d 139, 142 (D.C. Cir.
2007); In re United States, 872 F.2d 472, 474 (D.C. Cir. 1989).
\47\See, e.g., Zuckerbraun v. General Dynamics Corp., 935 F.2d 544,
546-47 (2d Cir. 1991).
\48\See, e.g., Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir.
1983).
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The definition of ``state secret'' used in the bill is
preferable (although fundamentally similar) to the Reynolds
formulation for two main reasons.\49\ First, the definition in
the bill is more precise. It avoids the vague language of
Reynolds about ``matters which, in the interest of national
security, should not be divulged,'' and focuses the judicial
inquiry on the likelihood and severity of the potential harm at
issue.
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\49\Robert M. Chesney accurately captured the intent of the
legislation's sponsors to clarify the definition of ``state secret'' in
civil litigation, rather than fundamentally to transform the
definition. In response to written questions from Judiciary Committee
Members about how the bill's definition of ``state secret'' compares to
current law, Professor Chesney stated:
``It seems to me that there are two variables at issue here. First
there is the question of how likely it is that public disclosure of
information will cause harm, period. Second, there is the question of
the magnitude of that harm. The language in the bill calibrates the
first variable using a reasonable-risk test that is, I think,
consistent with existing law (as reflected in the ``reasonable danger''
language quoted above). The language in the bill calibrates the second
variable using a ``significant harm'' standard. How does that compare
to the status quo? I do not think there is a clear answer to that
question. Reynolds and its progeny do not clearly specify whether the
harm threshold is de minimis, significant, grave, or any other
particular calibration. That said, it seems to me that ``significant''
fairly captures the understanding implicit in current law, given that
there is no affirmative support in current law for the proposition that
the privilege only kicks in when the harm to national security would be
especially grave, and given that there is little sense in protecting
information the disclosure of which concededly would cause only de
minimis or insignificant harms. For all of those reasons, therefore, I
think that the bill does not actually work a change with respect to
either variable.''--Response of Robert M. Chesney to Written Questions
4-5 (Mar. 5, 2008).
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Second, the definition in the bill expressly includes
``foreign relations,'' whereas the Reynolds language does not.
Some courts have stated that the privilege protects both
foreign relations and national security interests\50\--which
makes sense as a matter of policy and in light of the executive
branch's constitutional responsibilities in both areas--and the
bill codifies that understanding. The sponsors of the
legislation assume that the standard of ``significant harm''
will generally be more difficult to meet with respect to
foreign relations as compared to the national defense, and
routine matters involving international trade, diplomatic
relations, or the United States' image in the world should not
qualify. Yet in some rare instances, the court may find that
the likely impact of disclosure on foreign relations would be
sufficiently grave, in terms of the national interest, as to
threaten ``significant harm'' on the order of disclosure of
sensitive security information.
---------------------------------------------------------------------------
\50\See, e.g., El-Masri v. United States, 479 F.3d 296, 305 (4th
Cir. 2007); In re Grand Jury Subpoena dated August 9, 2000, 218 F.
Supp. 2d 544, 559 (S.D.N.Y. 2002).
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Section 4052. In a new section 4052 of the United States
Code, the bill sets forth rules governing procedures related to
this chapter.
This section instructs the court in determining who shall
have access to documents and proceedings under the Act. It
provides guidance on when hearings may be in camera and ex
parte, when participation in hearings and access to documents
may be conditioned on security clearances, when protective
orders may be issued, and when opinions or orders may be issued
under seal or in redacted form. It also advises the court that
it may appoint a special master or other independent advisor.
In the use of all of these procedural measures, the bill is
clear that it is the court, not the executive branch, that
determines whether and in what ways the measures will be
applied.
Subsection 4052(a) instructs the court to determine which
filings, motions, and affidavits, or portions thereof, shall be
submitted ex parte, and it affirms the court's authority to
order redacted, unclassified, or summary substitutes of
evidence as appropriate. The requirement in Sec. 4052(a)(3)
that the court ``tak[e] into consideration the interests of
justice and national security'' establishes general principles
to guide these determinations. The interests of justice include
fairness, due process, and instrumental rationality. Although
depriving litigants of full access to the Government's filings,
motions, and affidavits may be necessary in some instances to
protect the interests of national security, it can disserve the
interests of justice that underlie our adversarial system by
impairing the ability of litigants to argue their case. Courts
must be mindful of both interests.
Subsection 4052(b) sets a requirement that all hearings
based on the assertion of the state secrets privilege, as
provided for in subsection 4054(c), be conducted in camera,
except if the court determines that the hearing relates only to
a question of law and does not present a risk of revealing
state secrets, in which case the hearing shall not be conducted
in camera. In the hearings referenced in subsection
4052(b)(1)(A), the court reviews the allegedly privileged
evidence and takes argument to inform its determination on
whether and to what extent that evidence deserves special
protection. Given that the purpose of these hearings is to test
state secrets claims, it makes sense from a national security
standpoint to have the hearings be closed to the public.\51\
---------------------------------------------------------------------------
\51\Cf. Kerr v. U.S. Dist. Court, 426 U.S. 394, 405-06 (1976) (``It
is settled that in camera procedures are an appropriate means to
resolve disputed issues of privilege.''); Mark J. Rozell, Executive
Privilege: Presidential Power, Secrecy, and Accountability 165 (rev. 2d
ed. 2002) (``There * * * is considerable legal precedent for in camera
review of sensitive information by the courts. Rather than simply
compelling disclosure of privileged information for open court review,
it may be appropriate for the executive branch to satisfy the court in
secret chambers of the necessity of nondisclosure.'' (internal citation
omitted)).
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Subsection 4052(b)(2) allows the hearings, or portions
thereof, to be conducted ex parte as well as in camera, ``if
the court determines, following in camera review of the
evidence, that the interests of justice and national security
cannot adequately be protected through the [security clearance
requirements and protective orders] described in subsection (c)
and (d).'' This provision recognizes the possibility that
nothing short of ex parte hearings will adequately protect the
interests of national security in certain instances. However,
this provision also recognizes that as a general matter, the
interests of justice, the truth-seeking function of the court,
and reasoned decisionmaking are best served through the
adversarial process, and that shutting out non-governmental
parties from hearings is an extreme measure. As indicated by
the reference to alternative measures described in subsections
(c) and (d) and by the invocation of ``the interests of
justice,'' ex parte hearings are meant to be a measure of last
resort. The court's prior in camera review of the evidence will
enable it to make an informed decision as to whether ex parte
proceedings are necessary.
Subsection 4052(c) requires the court to limit
participation in hearings on the state secrets privilege to
attorneys with appropriate security clearances, if the
executive branch makes such a request and the court
``determines that limiting participation in that manner would
serve the interests of national security.'' Under the structure
of the bill, hearings play a central role as the forum in which
litigants can present arguments to the court about why
information does or does not qualify for the state secrets
privilege. If at all possible, litigants and their attorneys
should be present at the hearing to enable full adversarial
testing of the executive branch's assertions, and the delay and
the burden associated with clearance procedures should be
avoided. However, this subsection recognizes that protecting
national security may require the court in some cases to limit
attendance at the hearing, or portions thereof, to cleared
attorneys. Protective orders, Sec. 4052(d), and sealed or
redacted orders, Sec. 4052(e), are likewise permissible but
disfavored.
In a situation in which a litigant's attorney is barred
from participating in a state secrets pre-trial hearing for
national security reasons, subsection 4054(c)(1) authorizes the
court to appoint a guardian ad litem with the necessary
security clearances to represent that litigant. Although the
right to employ the attorney of one's choosing is an important
tenet of our civil justice system, guardians ad litem offer a
second-best solution for those portions of proceedings from
which one's attorney is excluded. Guardians ad litem can ensure
that a litigant's interests and arguments are represented in
these hearings, and thereby preserve a significant measure of
adversariality in the privilege review process.
Because the process of obtaining a clearance may take time,
subsection 4052(c)(2) allows the court to suspend proceedings
during the duration of this process if doing so would serve the
interests of justice. In recognition of the possibility that
the executive branch could use the security clearance process
as a delaying tactic or as a means to disqualify attorneys who
are otherwise deserving of clearance, subsection 4054(c)(3)
authorizes the court ``to review in camera and ex parte the
reasons of the United States for denying or delaying the
clearance to ensure that the United States is not withholding a
security clearance from a particular attorney or class of
attorneys for any reason other than protection of national
security.'' This provision does not grant the court any
authority to issue a security clearance or to require the
Government to do so; rather, it clarifies that the Government
may not abuse the security clearance process in an effort to
undermine the bill. If the court determines that the Government
is delaying or denying a security clearance for reasons other
than the protection of national security, it may exercise its
equitable authority to sanction the Government in an
appropriate manner, while appointing an individual who has or
can obtain the necessary clearance as a guardian ad litem to
represent the plaintiff.
Subsection 4052(f) authorizes the court to appoint a
special master or other independent advisor who holds the
necessary security clearances, to the extent any are needed, to
assist the court in handling any matter under the bill. Federal
judges already have legal authority to appoint independent
experts to assess Government secrecy claims,\52\ and though
they rarely avail themselves of this authority, experience
shows it can be used ``with great success.''\53\ Special
masters offer judges a tool to make their review of materials
less burdensome and more informed, and to help judges better
understand the factual predicates and policy judgments involved
in executive branch claims regarding national defense or
foreign relations. Subsection 4052(f) is meant to stimulate
courts to use special masters.
---------------------------------------------------------------------------
\52\See Meredith Fuchs & G. Gregg Webb, Greasing the Wheels of
Justice: Independent Experts in National Security Cases, Am. Bar Ass'n
Nat'l Security L. Rep., Nov. 2006, at 1, 3-5.
\53\Meredith Fuchs, Judging Secrets: The Role Courts Should Play in
Preventing Unnecessary Secrecy, 58 Admin. L. Rev. 131, 174 (2006)
(describing Judge Louis Oberdorfer's use of a special master to review
classified records in camera in Wash. Post v. Dep't of Def., 766 F.
Supp. 1 (D.D.C. 1991)); see also Ellsberg v. Mitchell, 709 F.2d 51, 64
(D.C. Cir. 1983) (encouraging ``procedural innovation'' in addressing
state secrets issues); Al-Haramain Islamic Found. v. Bush, 451 F. Supp.
2d 1215, 1233 (D. Ore. 2006) (suggesting the appointment of a national
security expert as a special master to assist in assessing the effects
of disclosure); Robert P. Deyling, Judicial Deference and De Novo
Review in Litigation over National Security Information Under the
Freedom of Information Act, 37 Vill. L. Rev. 67, 105-11 (1992)
(exploring the costs and benefits of employing special masters in FOIA
national security litigation and concluding that ``experience so far
suggests that special masters can at least be employed for limited
purposes in such cases, saving court time and facilitating resolution
of the issues'').
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Section 4053. In a new section 4053 of the United States
Code, the bill sets forth procedures for answering a complaint.
This section sets rules for the executive branch in
asserting the state secrets privilege when answering a
complaint or intervening in a civil action.
Subsection 4053(a) allows the Government to intervene in
any civil action to assert the privilege, which represents no
change from current practice.
Subsection 4053(b) clarifies that the court is prohibited
from dismissing cases or claims on state secrets grounds except
as provided under section 4055 of the bill. This subsection
also clarifies that the court may not rule on a motion to
dismiss or for summary judgment until after completion of
hearings under subsection 4054(c), except when such ruling can
be made entirely independently of the Government's assertion of
the privilege. Hence, the court may not dismiss a case or claim
on state secrets grounds at the pleadings stage; it may dismiss
a case or claim on state secrets grounds only after any
allegedly privileged evidence has been identified in the course
of discovery or pre-trial proceedings and the court has ruled
on the assertions of the privilege. Furthermore, if a
plaintiff's ability to survive summary judgment may depend on
whether the plaintiff is able to discover or introduce evidence
that the Government asserts is privileged, the court must rule
on the assertion of privilege before deciding the summary
judgment motion. The rationale for this provision is set forth
in the discussion of section 4055, below.
Subsection 4053(c) allows the executive branch to plead the
state secrets privilege in response to any allegation in any
individual claim or counterclaim and, in so doing, to avoid
admitting or denying certain facts or having the court draw an
adverse inference or admission. By allowing the Government to
plead ``state secrets'' in such a manner, the bill enables
lawsuits to move forward without risk that the Government's
answer will itself reveal state secrets. The requirement that
the Government plead the privilege in response to allegations,
rather than to claims or counterclaims, imposes a burden of
specificity on the Government to tailor its assertions of the
privilege to particular allegations that the Government
believes implicate state secrets.
Subsection 4053(d) requires the executive branch, when it
pleads the state secrets privilege, to explain its factual
basis for doing so in an affidavit signed by the relevant
agency head. This explanation will help the court, when
reviewing the evidence, to evaluate the persuasiveness of the
Government's claimed need for the privilege. The non-delegation
language used in this subsection is based on language from
United States v. Reynolds, which stated that for the Government
to assert the state secrets privilege, ``[t]here must be formal
claim of privilege, lodged by the head of the department which
has control over the matter, after actual personal
consideration by that officer.''\54\
---------------------------------------------------------------------------
\54\345 U.S. 1, 7-8 (1953) (internal citation omitted).
---------------------------------------------------------------------------
Section 4054. In a new section 4054 of the United States
Code, the bill sets forth procedures for determining whether
evidence is protected from disclosure by the state secrets
privilege.
This section establishes procedures for courts to follow in
determining the applicability of the state secrets privilege.
It requires the court to hold a hearing to examine the evidence
and affidavits and to rule on the Government's assertion of the
privilege. The Government must make all evidence it claims is
subject to the privilege available for the court to review;
this must be done prior to the hearing, so that the court can
determine whether to conduct the hearing ex parte or take other
protective measures. The Government must also provide a
manageable index of the evidence.
If the court finds that an item of evidence contains a
state secret, or there is no possible means of effectively
segregating it from other evidence that contains a state
secret, then that item is privileged and may not be disclosed.
In determining whether public disclosure of an item of evidence
would be reasonably likely to cause significant harm, the court
shall give substantial weight to the views of the United
States, and shall weigh the testimony of a Government expert in
the same manner as, and along with, any other expert testimony.
When material evidence is found to be privileged, the court
must, if possible, order the Government to create a non-
privileged substitute for the evidence, such as an unclassified
summary or a redacted version. If the Government refuses to
turn over evidence or to provide a non-privileged substitute
ordered by the court, the court will resolve the relevant issue
of fact or law against the Government.
Subsection 4054(a) provides that the United States may
assert the state secrets privilege in any civil action as a
ground for preventing the public disclosure of evidence. This
subsection acknowledges that United States may assert the
privilege in State court as well as Federal court, which is no
change from current practice, although the judicial procedures
established by the bill apply only to Federal courts.
Echoing subsection 4053(d), subsection 4054(b) requires the
executive branch, when it asserts the state secrets privilege,
to explain its factual basis for doing so in an affidavit
signed by the relevant agency head. This subsection also
requires the executive branch to make public an unclassified
version of this affidavit, so that the American people can see
its arguments. The unclassified version should contain as much
detail as the Government can provide without compromising
national security or disclosing the alleged state secrets
themselves. In many cases, this should be achievable simply by
redacting names, operational details, or similar information.
Subsection 4054(c) requires the court to hold a pre-trial
hearing or hearings (i) to examine the items of evidence that
the Government asserts are subject to the state secrets
privilege, (ii) to examine the affidavits submitted by the
Government in support of its assertions of the privilege, and
(iii) to determine the validity of any assertions of the
privilege. These hearings must be ``consistent with the
requirements of section 4052.'' Therefore, they must comply
with subsection 4052(b)(2)'s limitations on ex parte
proceedings, and they must be in camera unless they relate only
to a question of law and do not present a risk of revealing
state secrets.
The central role assigned by the bill to these hearings
reflects the intent to make judicial review of privilege claims
as careful, thorough, and adversarial as possible, consistent
with national security. Through the participation of counsel
and/or guardians ad litem, the Government's legal and factual
assertions relating to its claim of the privilege may be
challenged and developed before the court, helping the court to
understand better the allegedly privileged evidence and the
likely significance of ordering its public disclosure.
Litigants will have the opportunity to explain why they believe
evidence should or should not be found privileged or relevant.
There is some precedent for this use of pre-trial hearings in
CIPA.\55\
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\55\Section six of CIPA provides for pre-trial hearings on the
admissibility of classified evidence, 18 U.S.C. app. Sec. 6 (2000),
during which the court must determine the relevance of the classified
information, id. Sec. 6(a), and the adequacy of substitutes offered by
the Government in lieu of classified documents, id. Sec. 6(c).
---------------------------------------------------------------------------
At the same time, pre-trial hearings under subsection
4054(c) are not meant to be overly burdensome. If there are
questions regarding the relevance or admissibility of evidence,
the court should address those questions at the outset of the
hearing; if the court determines that the evidence is
irrelevant or inadmissible, the privilege issue will become
moot, and there will be no need to proceed further with the
hearing. Moreover, the court need not pore over every item of
evidence and rule on each item's privileged status during the
hearing itself. The hearings are a means to inform,
rationalize, and enhance the court's review of, and decision-
making on, allegedly privileged evidence, but they need not be
the forum in which all such review and decision making takes
place.
Subsection 4054(d)(1) requires the United States to ``make
all evidence [it] claims is subject to the state secrets
privilege available for the court to review, consistent with
the requirements of section 4052, before any hearing conducted
under this section.'' This provision enables the court to
determine whether it is appropriate to impose any restrictions
on the non-Government party's participation in the hearing; it
also ensures that the court will be able to make the most
effective use of the hearing for its consideration of the
allegedly privileged evidence. Although the executive branch
must make all allegedly privileged evidence ``available for the
court to review'' before any hearing, the court may in
appropriate cases avail itself of sampling under subsection
4054(d)(2).
Subsection 4054(d)(2) authorizes the court to review ``a
sufficient sampling of the [allegedly privileged] evidence,''
rather than each item of evidence, if it determines that
certain specified conditions are met. This sampling provision
is meant to preserve judicial economy in cases in which there
is no cost to doing so, but it is not meant to change in any
way the qualitative nature of the court's review. Sampling
should not be a routine occurrence. It should be invoked only
where it is genuinely impracticable to review the entirety of
the evidence and where it is clear from all the circumstances
that the privilege determination will not be affected by
limiting the evidence reviewed.
Subsection 4054(d)(3) requires the Government to ``provide
the court with a manageable index of evidence it contends is
subject to the state secrets privilege,'' which ``shall be
specific enough to afford the court an adequate foundation to
review the basis of the invocation of the privilege by the
United States.'' This provision draws on the Vaughn indices
that courts frequently require in FOIA litigation to assist
their review of materials the Government claims are exempt from
disclosure requirements.\56\ The requirement to produce such
indices will force the Government to articulate specific
reasons why each item of allegedly privileged evidence contains
state secrets, thus enabling ``adequate adversary testing''\57\
and careful judicial review of each item. As one commentator
has described it, the ``purpose of the detailed Vaughn Index
and affidavit is to require the agency to make as full a public
record as possible and to enable a more adversarial process in
[a] context in which considerable asymmetry of information
exists. A Vaughn Index can only serve this purpose and allow
the court to perform a de novo review if it is sufficiently
detailed and specific.''\58\ Submission of the index to the
court is not a substitute for submitting the evidence itself;
rather, the purpose of the index is to serve as an interpretive
aide in the court's review of the actual evidence.
---------------------------------------------------------------------------
\56\See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)
(formulating ``a system of itemizing and indexing [the allegedly exempt
material] that would correlate statements made in the Government's
refusal justification with the actual portions of the document'' and
``would subdivide the document * * * into manageable parts cross-
referenced to the relevant portion of the Government's
justification''); see also King v. U.S. Dep't of Justice, 830 F.2d 210,
223 (D.C. Cir. 1987) (explaining the ``specificity of description''
required in a Vaughn index).
\57\Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973).
\58\Meredith Fuchs, Judging Secrets: The Role Courts Should Play in
Preventing Unnecessary Secrecy, 58 Admin. L. Rev. 131, 172 (2006).
---------------------------------------------------------------------------
Subsection 4054(e)(1) instructs the court to review each
item of evidence, or each item in the sample if sampling is
used under Sec. 4052(d)(2), that the United States asserts is
protected by the state secrets privilege ``to determine whether
the claim of the United States [that the item is privileged] is
valid.'' ``An item of evidence is subject to the state secrets
privilege,'' the provision indicates, ``if it contains a state
secret, or there is no possible means of effectively
segregating it from other evidence that contains a state
secret.'' Subsection 4054(e)(2) states that non-privileged
items of evidence may be publicly disclosed, subject to the
standard rules of evidence and civil procedure, but that items
of evidence found by the court to be privileged ``shall not be
disclosed or admissible as evidence.'' Subsection 4054(e)(3)
sets a standard of judicial review for the privilege
determinations made under (e)(1).
Subsection 4054(e) can be seen as the heart of the bill. It
makes crystal-clear that the court, not the executive branch,
determines which items of evidence are privileged. It requires
the court to consider the actual evidence, rather than rely on
Government affidavits or representations about the evidence, in
making this determination. Following a 2005 Supreme Court
ruling, it also makes clear that the privilege applies only to
specific items of evidence and is therefore a strictly
evidentiary privilege, distinct from the question of
justiciability.\59\ Finally, it sets a standard of review
designed to give appropriate respect to the executive branch's
institutional expertise and constitutional role, without
undermining the judge's duty to make an independent
determination on each privilege claim.
---------------------------------------------------------------------------
\59\See Tenet v. Doe, 544 U.S. 1, 9-10 (2005) (contrasting the
``categorical Totten bar'' to judicial review of espionage contracts
with the ``balancing approach'' courts must apply in evaluating
government claims of ``the state secrets evidentiary privilege'').
---------------------------------------------------------------------------
The requirement that the court determine for itself which
items of evidence are subject to the state secrets privilege,
based on its review of those items, is consistent not only with
judicial review of evidentiary privilege claims generally, but
also with the Supreme Court's explanation of the state secrets
privilege in Reynolds (even though in Reynolds the Court
ultimately declined to review the allegedly privileged evidence
and therefore left itself vulnerable to being misled). The
Reynolds opinion states that ``[t]he court itself must
determine whether the circumstances are appropriate for the
claim of privilege,''\60\ the court must ``satisfy[] itself
that the occasion for invoking the privilege is
appropriate,''\61\ and ``judicial control over the evidence in
a case cannot be abdicated to the caprice of Executive
officers.''\62\ Subsequent judicial decisions have similarly
held that a ``court before which the privilege is asserted must
assess the validity of the claim of privilege, satisfying
itself that there is a reasonable danger that disclosure of the
particular facts in litigation will jeopardize national
security.''\63\
---------------------------------------------------------------------------
\60\United States v. Reynolds, 345 U.S. 1, 8 (1953).
\61\Id. at 11.
\62\Id. at 9-10.
\63\Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546-47 (2d
Cir. 1991).
---------------------------------------------------------------------------
All of these statements imply that the court must
independently evaluate each claim of the state secrets
privilege--that while the executive branch's initial privilege
determination may be deserving of respect, it is never
controlling, nor is it ever independent of court review. For
the court to determine that the privilege applies to a
particular item of evidence, it must be ``ultimately satisfied
that [state] secrets are at stake,''\64\ and there is no
rational way for the court to be ``ultimately satisfied'' of
this conclusion without looking at the evidence itself.
---------------------------------------------------------------------------
\64\Reynolds, 345 U.S. at 11.
---------------------------------------------------------------------------
Reynolds thus acknowledged the authority of Federal courts
to conduct in camera review of evidence that the Government
claims to be privileged, when the court finds such review to be
necessary. The authority of courts to review national security
materials is also established in the Freedom of Information
Act, which provides that courts ``may examine the contents of
[withheld] agency records in camera,''\65\ including classified
records that the Government claims must be ``kept secret in the
interest of national defense or foreign policy.''\66\ To the
extent that Reynolds has been read to bless the judicial
practice of not ``insisting upon an examination of the
evidence, even by the judge alone, in chambers'' under certain
conditions,\67\ the bill overrides the court's discretion to
adopt such a practice.
---------------------------------------------------------------------------
\65\5 U.S.C. Sec. 552(a)(4)(B) (2000).
\66\Id. Sec. 552(b)(1).
\67\Reynolds, 345 U.S. at 10.
---------------------------------------------------------------------------
In the sponsors' view, failure to scrutinize the actual
evidence is an abdication of judicial responsibility, and
subsection 4054(e)(1)'s requirement that the court base its
privilege determinations on its own review of specific items of
evidence is needed to protect against the possibility of abuse,
to ensure fairness and the appearance of fairness in the use of
the state secrets privilege, and to preserve the integrity of
our judicial system. This requirement also recognizes and
codifies the principle that state secrets assertions are
justiciable.\68\ The justiciability of state secrets assertions
was affirmed by Reynolds's statement that ``[t]he court itself
must determine whether the circumstances are appropriate for
the claim of privilege,''\69\ and it has been acknowledged by
numerous experts in this area of law.\70\
---------------------------------------------------------------------------
\68\Thus, with respect to the state secrets privilege, judicial
decisions involving the justiciability of espionage contracts, see,
e.g., Tenet v. Doe, 544 U.S. 1 (2005); Totten v. United States, 92 U.S.
105 (1875), do not provide relevant precedents. The state secrets
privilege neither deprives courts of any grant of jurisdiction, nor
does it provide the Government with any grant of immunity.
\69\Reynolds, 345 U.S. at 8.
\70\See, e.g., Am. Bar Ass'n, Report to the House of Delegates 5-7
(Revised Report 116A) (2007); Constitution Project, Reforming the State
Secrets Privilege 13 (2007). Judge Patricia M. Wald further testified
to the Judiciary Committee that: ``our traditions of fair hearing
dictate that to the maximum degree feasible all relevant evidence be
admitted in judicial proceedings. * * * Only [by inspecting the
allegedly privileged materials] can the judge fulfill the judicial
obligation to insure [sic] a fair hearing but just as important only if
he sees the evidence for himself can he make the CIPA-like decision
whether there are alternative ways than its presentation in original
form to satisfy the plaintiff's need but not to impugn national
security as well as whether the objected to material can be segregated
from other material in the same document that does not qualify for
protection * * *.''--Examining the State Secrets Privilege: Protecting
National Security While Preserving Accountability, Hearing before the
S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared
statement of Patricia M. Wald).
---------------------------------------------------------------------------
Subsection 4054(e)(1)'s instruction that an item of
evidence is subject to the privilege ``if it contains a state
secret, or there is no possible means of effectively
segregating it from other evidence that contains a state
secret,'' recognizes that privileged information may in some
cases be inextricably entwined with non-privileged information,
in which case certain otherwise non-privileged information may
deserve to fall under the privilege's protection. At the same
time, this provision makes clear that the court must cabin its
privilege findings as tightly as it can, and that
``segregation'' must be used whenever possible to enforce this
requirement.\71\ This codifies the approach developed by the
U.S. Court of Appeals for the District of Columbia Circuit, and
employed by numerous courts faced with assertions of the
privilege, that ``whenever possible, sensitive information must
be disentangled from nonsensitive information to allow for the
release of the latter.''\72\ If any part of an item of evidence
does not contain state secrets and can be segregated from
material that does contain state secrets, that part must be
found non-privileged. It is the court's responsibility to
determine whether such segregation is possible; it is the
executive branch's responsibility to redact or delete
privileged evidence as ordered.
---------------------------------------------------------------------------
\71\The segregation of sensitive from non-sensitive information is
a feature of FOIA, which requires that ``[a]ny reasonably segregable
portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt.'' 5 U.S.C.
Sec. 552(b) (2000). The ``reasonable'' standard in FOIA's segregation
requirement is replaced here with a ``possible'' standard, in
recognition of the unique potency of the state secrets privilege.
\72\Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983); see
also id. (``[T]he privilege may not be used to shield any material not
strictly necessary to prevent injury to national security * * *.'')
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In recent years, the executive branch has frequently
asserted that seemingly harmless items of information should be
protected from public disclosure, lest an adversary combine
them with other items to form a dangerous mosaic.\73\ While
potentially useful as a heuristic for conceptualizing how
adversaries utilize information, this ``mosaic theory'' is
plainly susceptible to misuse; it lacks any limiting principle
and ``proves too much'' by potentially covering even the most
innocuous information. The requirement that judges find an item
of evidence to be privileged only if the item itself ``contains
a state secret, or there is no possible means of effectively
segregating it from other evidence that contains a state
secret,'' is designed to prevent the Government from shielding
wholly non-privileged information by invoking the mosaic theory
and to warn judges against expansive applications of the
theory.
---------------------------------------------------------------------------
\73\See, e.g., El-Masri v. United States, 479 F.3d 296, 305 (4th
Cir. 2007); Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331
F.3d 918, 928-31 (D.C. Cir. 2003); North Jersey Media Group, Inc. v.
Ashcroft, 308 F.3d 198, 219 (3d Cir. 2002); Kasza v. Browner, 133 F.3d
1159, 1166 (9th Cir. 1998); Al-Haramain Islamic Foundation, Inc. v.
Bush, 451 F. Supp. 2d 1215, 1220 (D. Or. 2006); Edmonds v. U.S. Dept.
of Justice, 323 F. Supp. 2d 65, 77-78 (D.D.C. 2004).
---------------------------------------------------------------------------
Thus, to find an item of evidence to be subject to the
state secrets privilege, the court must determine that public
disclosure of that specific item would be reasonably likely to
cause significant harm. The mosaic theory provides a metaphor
for how public disclosure of evidence might be harmful; it does
not alter the Government's burden of persuasion or the nature,
substance, or manner of the court's review. If the Government's
assertion of the privilege relies on the allegedly privileged
evidence being combined with other items of information (i.e.,
the mosaic theory), the Government must identify specific
scenarios in which the combination would be reasonably likely
to cause significant harm, and it must demonstrate that such
scenarios are reasonably likely to occur. The Government must
show concretely and specifically, and not just through general
speculation, that public disclosure of the specific items of
evidence, in conjunction with other items of information, would
be reasonably likely to cause significant harm.
By linking the privilege to the content of specific items
of evidence and by requiring explanatory indices under
subsection 4054(d)(3), the bill requires the executive branch
to make precise arguments, tailored to each allegedly
privileged item of evidence or portion thereof, about the
consequences of disclosing the sought-after information. (Of
course, the executive branch may believe that the same argument
about the consequences of public disclosure obtains across
multiple items of evidence; if so, it is the Government's
burden to explain why.) These particularized arguments will
enable the judge to evaluate the persuasiveness of the
Government's state secrets assertions in a more searching and
independent manner than would otherwise be possible.
Subsection 4054(e)(2) clarifies that while the state
secrets privilege provides no bar to the public disclosure of
non-privileged items of evidence, it provides an absolute bar
to the admissibility or discoverability of privileged items.
Hence, the bill not only acknowledges the necessity of
withholding information in certain instances to protect
national security or foreign relations; it also codifies and
legitimizes the state secrets privilege. If the court
determines that an item of evidence, if disclosed publicly,
would be reasonably likely to cause significant harm to the
national defense or foreign relations of the United States, the
court may not balance this reasonable likelihood against the
potential benefits that may come from public disclosure, such
as revealing illegal or unconstitutional executive branch
conduct, except to the extent that such benefits themselves
might reduce the likelihood of ``significant harm.'' In cases
where the court determines that evidence is privileged despite
certain public benefits that might result from disclosure, the
court maintains its inherent authority to fashion appropriate
equitable procedures or remedies that do not entail the
disclosure of the privileged information.
As legal scholars have explained, the bill's prohibition on
the release of privileged evidence undermines any
constitutional objections that might possibly be raised against
its basic structure:
[A]dministration of the privilege has always been
shared by the executive and the judicial branches of
government. There is no constitutional bar to Congress
playing an active role as well. The constitutionality
of the State Secrets Protection Act is especially clear
given that the Act respects and reinforces the
privilege, so that if a court finds that an item of
evidence contains a state secret, or cannot be
effectively separated from other evidence that contains
a state secret, then the evidence may not be released.
Thus, even if the privilege were to have a
constitutional core rooted in the President's powers
under Article II of the Constitution, the Act would not
encroach upon it.\74\
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\74\Scholars' Letter to Senate Judiciary Committee 1 (Feb. 12,
2008).
Subsection 4054(e)(3) establishes a standard of review for
courts to evaluate executive branch assertions of the state
secrets privilege. In introducing this provision as an
amendment at the Judiciary Committee markup, in which it passed
by a vote of 18-to-1, Senator Feinstein explained that without
such a provision, significant ambiguity would remain as to the
intended nature of judicial review under the bill. Senator
Specter, the lone dissenting vote, stated that given past
executive branch abuses of the privilege, he believed the court
should give no deference whatever to the executive branch's
arguments as to why certain evidence deserves to be privileged.
In response, Senator Feinstein emphasized that (i) ``weight''
is different than ``deference'' and is owed to all experts in
litigation; (ii) some courts have been applying ``utmost
deference'' to privilege claims, so if the bill does not
address the standard of review, that standard may persist;
(iii) the executive branch has a clear self-interest in
lawsuits in which it is accused of breaking the law; (iv) her
amendment requires the views of other relevant experts also to
be given the same weight; and (v) numerous outside experts,
including Judge Patricia M. Wald, have suggested ``substantial
weight'' as the appropriate standard.
The language of subsection 4054(e)(3) reflects the belief
that the executive branch's institutional expertise and
constitutional responsibilities regarding national defense and
foreign affairs deserve respect from the court, but that the
court must make privilege determinations only on the basis of
its own independent evaluation. The bill thus firmly rejects
the notion that a court should give ``utmost deference'' to the
executive branch or in any other way compromise the
independence and impartiality of its decision making. This
approach comports with the duty of the judiciary to safeguard
constitutional rights and values and to preserve full and fair
trials to the greatest extent possible (matters on which the
court has far greater expertise than the executive branch),
with the traditional disfavored role of evidentiary privileges
in litigation,\75\ and with the standard of judicial review
already employed by Federal courts under FOIA's national
security exemption--although the sponsors of this bill strongly
reject the line of FOIA precedent that has interpreted
``substantial weight'' to be virtually dispositive for the
Government.\76\
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\75\See United States v. Nixon, 418 U.S. 683, 708-10 (1974)
(stating that ``privilege [assertions] must be considered in light of
our historic commitment to the rule of law,'' that ``[t]he need to
develop all relevant facts in the adversary system is both fundamental
and comprehensive,'' that ``[t]he very integrity of the judicial system
and public confidence in the system depend on full disclosure of all
the facts, within the framework of the rules of evidence,'' and that
because evidentiary privileges act ``in derogation of the search for
the truth,'' they are ``not lightly created nor expansively
construed''); see also Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189
(1990) (``Inasmuch as testimonial exclusionary rules and privileges
contravene the fundamental principle that the public has a right to
every man's evidence, any such privilege must be strictly construed.''
(internal citations, quotations, and brackets omitted)).
\76\Under FOIA, Congress has authorized Federal courts to determine
de novo whether the Government has properly classified information,
with the burden of persuasion on the Government. See 5 U.S.C.
Sec. 552(b)(1)(B) (2000); see also Ray v. Turner, 587 F.2d 1187, 1190-
95 (D.C. Cir. 1978) (explaining the legislative history of FOIA and the
contemplated role for judicial review, and stating that when Congress
overrode President Ford's veto and amended FOIA in 1974 to provide for
de novo review and in camera document inspection, Congress ``stressed
the need for an objective, independent judicial determination, and
insisted that judges could be trusted to approach the national security
determinations with common sense, and without jeopardy to national
security''). In its Committee Report on the 1974 FOIA amendments,
Congress indicated that courts in national security cases should
``accord substantial weight'' to an agency's assertions as to the
classified status of the disputed record. S. Rep. No. 93-1200, at 12
(1974) (Conf. Rep.).
Many observers have criticized courts for being too deferential to
the Executive Branch in such cases. As one commentator has explained:
``Congress did not direct courts to defer to agency determinations.
Instead, it sought to assuage concerns about whether judges could be
trusted to perform a de novo review by expressing the expectation that
agency affidavits would be given substantial weight. * * * Were
agencies to provide detailed, common sense, and credible assertions,
then they would be given substantial weight.''--Meredith Fuchs, Judging
Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy,
58 Admin. L. Rev. 131, 162 (2006). Whatever Congress's intent with
respect to the ``substantial weight'' standard used in the 1974 FOIA
Committee Report, it is the understanding of that term articulated by
the court in Ray v. Turner, supra, that accurately captures the intent
of Congress in this bill.
It is worth noting that the stakes may be significantly lower in
FOIA litigation than in civil cases in which the state secrets
privilege is invoked. Under FOIA, any person may request a Government
record, and no reason need be given. State secrets cases, by contrast,
may implicate core issues of constitutional rights and individual
liberties, which makes ``utmost deference'' or any similar formulation
all the more inappropriate in this context.
---------------------------------------------------------------------------
The bill's move away from utmost deference also heeds the
concern that while the executive branch may have special
institutional expertise on the question of what constitutes a
state secret, it is not a neutral party in lawsuits in which
its agencies, officers, or contractors are being sued for
allegedly illegal or unconstitutional conduct. Rather, the
executive branch has an institutional self-interest in having
these lawsuits dismissed--and therefore in having the state
secrets privilege be construed as broadly as possible. As a
result, judicial independence in the face of privilege claims
is especially important.\77\
---------------------------------------------------------------------------
\77\Cf. Halkin v. Helms, 598 F.2d 1, 13-14 (D.C. Cir. 1978)
(Bazelon, J., dissenting from denial of petition for rehearing en banc)
(warning that without an independent judicial determination of the
propriety of state secrets assertions, ``the privilege becomes a shield
behind which the government may insulate unlawful behavior from
scrutiny and redress by citizens''); Comm. for Nuclear Responsibility
v. Seaborg, 463 F.2d 788, 794 (D.C. Cir. 1971) (``[N]o executive
official or agency can be given absolute authority to determine what
documents in his possession may be considered by the court in its task
[of determining applicability of a privilege]. Otherwise the head of an
executive department would have the power on his own say so to cover up
all evidence of fraud and corruption when a federal court or grand jury
was investigating malfeasance in office. * * *''); 4 John Henry
Wigmore, A Treatise on the System of Evidence in Trials at Common Law
Sec. 2376, at 3345 (1905) (``The lawful limits of the privilege are
extensible beyond any control, if its applicability is left to the
determination of the very official whose interest it is to shield his
wrongdoing under the privilege. Both principle and policy demand that
the determination of the privilege shall be for the judge.''); William
G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120
Pol. Sci. Q. 85, 90 (2005) (``[I]f the privilege protects the executive
and agencies from investigation and judicial power, then the incentive
on the part of administrators is to use the privilege to avoid
embarrassment, to handicap political enemies, and to prevent * * *
investigation of administrative action.''); Note, The Military and
State Secrets Privilege: Protection for National Security or Immunity
for the Executive?, 91 Yale L.J. 570, 578-79 (1982) (discussing ``the
need for judicial supervision of evidentiary privileges to prevent
their use as a shield against liability''); Stuart Taylor Jr.,
Reforming the State Secrets Privilege, Nat'l J., Apr. 12, 2008, at 16
(noting that the Executive Branch ``has shown, time and time again,
that it cannot be trusted not to use bogus national security claims to
avoid exposure of misconduct or embarrassment'').
---------------------------------------------------------------------------
To balance the testimony of a Government expert, subsection
4054(e)(3) requires the court to ``weigh the testimony of a
Government expert in the same manner as the court weighs, and
along with, any other expert testimony in the applicable
case.'' This language is intended not only to instruct the
court on the manner of weighing Government expertise, but also
to encourage greater use of non-governmental experts--again,
for the fundamental reason that vigorous judicial review is
needed as a check against the incentives in favor of executive
branch secrecy. Non-governmental experts may be individuals who
have been granted security clearances to review the allegedly
privileged evidence; or, in some situations, it may be possible
for individuals without clearance to provide expert assistance
based on the unclassified version of the Government's affidavit
required under subsection 4054(b). If no non-governmental
expert is available in a given case, the court will weigh a
Government expert's testimony in the same manner as it weighs
expert testimony in any other case.
Importantly, subsection 4054(e)(3) rejects any notion that
courts lack the competence or ability to evaluate the potential
harm to national defense or foreign relations from public
disclosure. Federal judges are appointed by the President,
confirmed by the Senate, and take an oath to uphold the
Constitution. Resolving questions of evidence and privilege are
core functions of the judiciary. Numerous statutes such as
CIPA, FOIA, and FISA already require courts to handle national
security materials and secret information as a routine
matter.\78\ Not once has there been any proven harm to national
security, and none of these statutes has ever been seriously
questioned on grounds of institutional competence. Furthermore,
special masters and other independent advisors are available to
provide technical assistance, as provided in subsection
4052(f).
---------------------------------------------------------------------------
\78\See supra notes 71 and 76 and accompanying text (discussing
judicial review under FOIA). Under FISA, Article III judges must
independently review the Government's assertion that electronic
surveillance is needed for foreign intelligence purposes, 50 U.S.C.
Sec. 1805 (2006), and Federal district courts may review highly
sensitive information in camera and ex parte to determine whether the
surveillance was authorized and conducted in accordance with FISA, id.
Sec. 1806(f). Under CIPA, Federal courts must determine whether and to
what extent classified information may be used at trial. 18 U.S.C. app.
(2000).
---------------------------------------------------------------------------
Testifying before the Judiciary Committee, Judge Patricia
M. Wald observed that judges ``deal with national security
information on a regular basis and can be entrusted with its
evaluation on the relatively modest decisional threshold of
whether its disclosure is `reasonably likely' to pose a
national security risk.''\79\ William Webster, a former Federal
judge at the district and appellate level and former head of
both the FBI and CIA, stated: ``I can confirm that judges can
and should be trusted with sensitive information and that they
are fully competent to perform an independent review of
executive branch assertions of the state secrets
privilege.''\80\
---------------------------------------------------------------------------
\79\Examining the State Secrets Privilege: Protecting National
Security While Preserving Accountability, Hearing before the S. Comm.
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of
Patricia M. Wald). Judge Wald further noted that ``[t]o [her]
knowledge, there have been no court `leaks' of any such information,''
and that ``it is neither unusual or unduly burdensome for federal
judges to handle classified information; many do it on a daily basis.''
Id.
\80\Examining the State Secrets Privilege: Protecting National
Security While Preserving Accountability, Hearing before the S. Comm.
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of
William H. Webster).
---------------------------------------------------------------------------
The sponsors of this legislation agree with the statements
of Judge Wald and Judge Webster. Guided by the procedures set
forth in the bill, informed by its required affidavits, pre-
trial hearings, and evidentiary indices, and assisted to the
extent necessary by expert testimony and special masters or
other independent advisors, Federal judges will have all the
tools they need to make a reasoned and responsible independent
evaluation of privilege claims. If the executive branch cannot
persuade the court that an item of evidence is reasonably
likely to cause significant harm, then that item does not
deserve the extraordinary protections afforded by the state
secret privilege. Moreover, the bill's provision for
interlocutory appeal ensures that privileged evidence will not
be disclosed on the basis of a single judge's determination, if
the Government believes the determination was erroneous.
Subsection 4054(f) instructs the court, when it has found
that material evidence is subject to the state secrets
privilege, to order the Government, if possible, to ``craft a
non-privileged substitute for that privileged material evidence
that provides a substantially equivalent opportunity to
litigate the claim or defense as would that privileged material
evidence.'' This role for non-privileged substitutes draws on
existing practices in encouraging judges to reconcile the
interests of national security with the interests of justice
and the adversarial process through carefully tailored
procedures,\81\ and it can play a critical role in effectuating
the bill's aim of minimizing the disruption to litigation
caused by the privilege. While the court has the authority
under this subsection to order a substitute, the executive
branch is the body that would actually create the substitute,
subject to the court's review.
---------------------------------------------------------------------------
\81\As noted above, under the Freedom of Information Act courts
must require the Government to segregate exempt information (such as
properly classified material) from non-exempt information, see supra
notes 71 and 76 and accompanying text, and the submission of non-
classified substitutes is a central aspect of the Classified
Information Procedure Act, which expressly provides courts with
discretion to deny Government requests to delete specific data from
classified materials or substitute summaries or stipulations of facts.
18 U.S.C. app. Sec. 4 (2000). See also Fitzgerald v. Penthouse Int'l
Ltd., 776 F.2d 1236, 1238 n.3 (4th Cir. 1985) (``When the state secrets
privilege is validly asserted, the result is unfairness to individual
litigants--through the loss of important evidence or dismissal of a
case--in order to protect a greater public value. Often, through
creativity and care, this unfairness can be minimized through the use
of procedures which will protect the privilege and yet allow the merits
of the controversy to be decided in some form.'').
---------------------------------------------------------------------------
Subsection 4054(g) states that if the court orders the
Government to provide a non-privileged substitute and the
Government fails to comply, the court ``shall resolve the
disputed issue of fact or law to which the evidence pertain in
the non-government party's favor.'' This requirement puts teeth
into the authority provided to the court in subsection 4054(f).
The executive branch may refuse to turn over the substitute as
ordered--which further undermines any argument that the bill
unconstitutionally encroaches upon executive branch authority
over alleged state secrets--but such defiance would come with
an appropriately tailored penalty.\82\ An analogous provision
exists in CIPA, under which, if a defendant is prevented from
introducing classified information needed for his or her
defense, the court may dismiss the indictment or ``find[]
against the United States on any issue as to which the excluded
classified information relates.''\83\
---------------------------------------------------------------------------
\82\In the Reynolds case, both the district court and the appellate
court held against the Government when the Government refused to
release the accident report--now widely believed not to contain any
state secrets--to the trial judge to be read in chambers. See Louis
Fisher, In the Name of National Security: Unchecked Presidential Power
and the Reynolds Case 56-57, 79-86 (2006).
\83\18 U.S.C. app. 3 Sec. 6(e)(2)(B) (2000).
---------------------------------------------------------------------------
Section 4055. In a new section 4055 of the United States
Code, the bill sets forth procedures for when evidence
protected by the state secrets privilege is necessary for
adjudication of a claim or counterclaim.
Section 4055 allows the court to dismiss a claim or
counterclaim on the basis of the state secrets privilege only
if certain specified conditions are met. As indicated in
subsection 4054(b), this section provides the exclusive means
of dismissing a claim or counterclaim on the basis of the
privilege. It is designed to reflect the sponsors' intent that,
whenever possible, Federal civil cases and claims should not be
dismissed--a drastic remedy strongly disfavored by
constitutional and policy considerations\84\--solely on account
of the state secrets privilege. Put differently, privileged
evidence should never be allowed to shut down litigation that
could proceed without it.
---------------------------------------------------------------------------
\84\Cf. In re United States, 872 F.2d 472, 477 (D.C. Cir. 1989)
(``Dismissal of a suit, and the consequent denial of a forum without
giving the plaintiff her day in court, * * * is indeed draconian.'');
Fitzgerald v. Penthouse Int'l Ltd., 776 F.2d 1236, 1242 (4th Cir. 1985)
(``[D]enial of the forum provided under the Constitution for resolution
of disputes is a drastic remedy that has rarely been invoked.'');
Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 995 (N.D. Cal. 2006)
(recognizing that ``the state secrets privilege has its limits'' and
that ``the court * * * takes seriously its constitutional duty to
adjudicate the disputes that come before it'').
---------------------------------------------------------------------------
Subsection 4055(1), the first condition, indicates that a
claim may not be dismissed if it is possible to produce a non-
privileged substitute version of material privileged evidence
that would allow the claim to be litigated fairly. Subsection
4055(2) indicates that dismissal is not allowed if it would
harm national security. This provision ensures that the court
will not dismiss cases in ways that would themselves jeopardize
security--for example, if the very act of dismissal might tend
to reveal a sensitive fact, or if the court believes that
judicial resolution of an issue is needed to prevent harm to
the safety and well-being of Americans. Drawing on an approach
developed in recent doctrine,\85\ subsection 4055(3) precludes
dismissal if continuing with the litigation in the absence of
the privileged evidence would not impair the ability of a party
to pursue a valid defense. This provision ensures that, just as
non-material privileged evidence may not be the basis for
dismissal under subsection 4055(1), nor may dismissal be
predicated on privileged evidence that would not be important
to a party's pursuit of a valid defense.
---------------------------------------------------------------------------
\85\See In re Sealed Case, 494 F.3d 139, 148-49 (D.C. Cir. 2007)
(discussing precedent for the ``valid defense'' standard, under which
if the ``court can determine that the defendant will be deprived of a
valid defense based on the privileged materials, it may properly
dismiss the complaint'').
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``Valid'' in subsection 4055(3) means legally and factually
colorable. Thus, if the court determines through in camera
review that evidence is privileged but its absence from
litigation would not substantially impair the ability of a
party to pursue a defense that the court determines is or may
be legally and factually meritorious, then that evidence may
not be the basis for dismissal on state secrets grounds. That
evidence would still be excluded from the litigation on account
of its privileged status, Sec. 4054(e)(2)(A), and it could not
be disclosed or admitted during trial. In some cases, the
inability to use such evidence may prevent the plaintiff from
making out a prime facie case, even when the evidence suggests
that the plaintiff's claims may be meritorious; the bill thus
accepts that in some rare and unfortunate instances, the
interests of litigants may be compromised in order to protect
state secrets. In other cases, however, a plaintiff may have
its own evidence with which to make out a prime facie case, or
may be able to make out a case with non-privileged evidence
procured from the Government. In this way, the bill gives
parties an opportunity to make a preliminary showing even in
cases in which the privilege is found to apply.\86\
---------------------------------------------------------------------------
\86\Cf. Examining the State Secrets Privilege: Protecting National
Security While Preserving Accountability, Hearing before the S. Comm.
on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of H.
Thomas Wells, Jr., President-Elect, American Bar Association) (``To
state this more plainly, if the plaintiff could prove the essential
elements of his claim without privileged information, the case would be
allowed to proceed as long as the government could fairly defend
against the claim without having to use privileged information.
However, if the government would have its hands tied behind its back by
not being able to invoke essential privileged information in defending
against the plaintiff's case, the case would be dismissed.'').
---------------------------------------------------------------------------
These rules protect the Government and private defendants
from suffering an unfair result under the bill. If a plaintiff
cannot make out a case using non-privileged evidence, the
defendant can, as always, prevail on summary judgment (unless
the court, based on the circumstances of the case, has
exercised its equitable authority to resolve relevant factual
questions in the non-government party's favor). If a defendant
is deprived of information needed to present a valid defense on
account of the privilege, the court may dismiss the claim, thus
ensuring that no party is ever put to a ``Hobson's Choice'' of
litigating with state secrets evidence or swallowing an
unwarranted adverse judgment.
In some recent cases, the Government has asserted that the
``very subject matter of the action'' is a state secret, such
that any further proceeding would jeopardize national
security.\87\ To the extent that such assertions are based on
the notion that the privilege may apply to a lawsuit simply
because the topic of the lawsuit implicates sensitive matters,
that notion is rejected. Lawsuits do not exist apart from the
materials and testimony that comprise them. If the plaintiff
can make out a case using only non-privileged evidence, and the
defendant can present its defense using only non-privileged
evidence, then clearly the case can and should proceed. To the
extent that such assertions are based on the notion that the
case would necessarily be ``pervaded with state secrets''\88\
and could not be litigated without the use of privileged
evidence, the bill simply puts such categorical claims to the
proof, requiring the Government to demonstrate to the court's
satisfaction the extent to which state secrets pervade the
lawsuit by identifying the specific items of evidence that
contain state secrets. As noted above, the bill rejects the
expansion of the state secrets privilege into any manner of
justiciability doctrine, and demands that it be applied as a
purely evidentiary privilege.
---------------------------------------------------------------------------
\87\See, e.g., Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.
1998); Al-Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190,
1200 (9th Cir. 2007).
\88\See, e.g., El-Masri v. United States, 479 F.3d 296, 306 (4th
Cir. 2007).
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Section 4056. In a new section 4056 of the United States
Code, the bill sets forth procedures for interlocutory appeal.
This section draws on CIPA\89\ in allowing parties an
expedited appeal of any court order under the Act, such as an
order on the privileged or non-privileged status of certain
items of evidence, which ensures a timely additional layer of
review. This provision protects national security by ensuring
that an erroneous decision by a single district court judge
would not lead to the release of properly privileged evidence.
---------------------------------------------------------------------------
\89\See 18 U.S.C. app. Sec. 7 (2000).
---------------------------------------------------------------------------
Section 4057. In a new section 4057 of the United States
Code, the bill sets forth security procedures.
Subsection 4057(a) adopts security procedures established
under CIPA\90\ to protect against unauthorized disclosure of
evidence subject to the state secrets privilege.
---------------------------------------------------------------------------
\90\See 18 U.S.C. app Sec. 9 (2000).
---------------------------------------------------------------------------
Subsection 4057(b) authorizes the Chief Justice of the
United States, in consultation with the Attorney General, the
Director of National Intelligence, and the Secretary of
Defense, to create additional rules to implement the bill,
subject to the review of congressional oversight committees.
The Chief Justice must submit any proposed rules to appropriate
congressional committees prior to their implementation. Such
submission should include an explanation of why the proposed
rules are needed.
All rules promulgated under this subsection must comply
with the letter and the spirit of the bill, such as its goal of
minimizing the disruptive effects of the state secrets
privilege on civil litigation and allowing cases to be
litigated to the fullest extent possible consistent with
national security. The rules may include procedures to help
provide for the special masters and guardians ad litem
contemplated by the bill--for example, by ensuring a minimum
number of guardians ad litem and special masters in each
judicial district to assist parties in state secrets cases.
Allowing these officials to be chosen solely by the executive
branch would not ``comply with the letter and spirit of the
bill''; it is assumed that any rules issued on the provision of
guardians ad litem and special masters will take into account
the need for these officials to perform their roles without
institutional bias.
Section 4058. In a new section 4058 of the United States
Code, the bill provides reporting requirements.
Subsection 4058(a) requires the Attorney General to report
to the House and Senate Intelligence and Judiciary Committees
on each instance in which the United States claims the state
secrets privilege, including providing the committees with
copies of the affidavits, indices, and, upon request, the
evidence. These materials shall be made available to all
members of the committees. This reporting requirement enhances
accountability for both the judiciary and the executive branch.
By keeping Congress informed on the executive branch's use of
the privilege, the reporting requirement enables Congress to
formulate legislation or take other appropriate corrective
action in cases in which the privilege prevents the courts from
ruling on illegal or unconstitutional Government conduct or
denies injured parties the relief they would otherwise be due.
Section 4058(a) thus clarifies the congressional right of
access to information it needs for its legislative and
oversight duties. Providing this information to Congress does
not implicate the national security concerns that would attend
public disclosure in litigation. The Attorney General can
transmit information under ``appropriate security measures,''
Sec. 4058(a)(4), and Members of Congress are no less
trustworthy than executive branch officials.\91\ Congress has
established physical security and staff clearance procedures,
as well as procedures for the receipt of sensitive information,
and all Members by virtue of their legislative responsibilities
are entitled to classified information. As courts have
recognized since the dawn of the Republic, Congress's authority
to investigate executive branch activity is clearly implied in
the Constitution and is a critical component of its authority
to legislate and its responsibility to expose corruption and
misfeasance.\92\ Congressional inquiries serving legitimate
interests into even the most sensitive foreign policy,
military, and prosecutorial matters have consistently been
upheld by the courts.
---------------------------------------------------------------------------
\91\Cf. F.T.C. v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 970
(D.C. Cir. 1980) (``Release to a congressional requestor is not a
public disclosure * * *. Once documents are in congressional hands,
courts must presume that the committees of Congress will exercise their
powers responsibly and with due regard for the rights of affected
parties.'' (internal citations and quotations omitted)); Exxon Corp. v.
F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (``We have * * * held that
release of information to the Congress does not constitute public
disclosure * * *. Because such divulgement is not public, it does not
in itself impair the value of the * * * secrets involved.'' (internal
citations and quotations omitted)).
\92\See, e.g., Barenblatt v. United States, 360 U.S. 109, 111
(1959) (``The scope of the power of [congressional] inquiry * * * is as
penetrating and far-reaching as the potential power to enact and
appropriate under the Constitution.''); Watkins v. United States, 354
U.S. 178, 187 (1957) (``The power of the Congress to conduct
investigations is inherent in the legislative process.''); McGrain v.
Daugherty, 273 U.S. 135, 174 (1927) (``[T]he power of inquiry--with
process to enforce it--is an essential and appropriate auxiliary to the
legislative function. It was so regarded and employed in American
legislatures before the Constitution was framed and ratified. Both
houses of Congress took this view of it early in their history * * *
and both houses have employed the power accordingly up to the present
time.''); see also Eastland v. U.S. Servicemen's Fund, 421 U.S. 491,
509 (1975) (``Nor is the legitimacy of a congressional inquiry to be
defined by what it produces. The very nature of the investigative
function--like any research--is that it takes the searchers up some
`blind alleys' and into nonproductive enterprises. To be a valid
legislative inquiry, there need be no predictable end result.'');
Woodrow Wilson, Congressional Government 303 (1913) (``It is the proper
duty of a representative body to look diligently into every affair of
government and to talk much about what it sees. * * *. Unless Congress
have and use every means of acquainting itself with the acts and the
disposition of the administrative agents of the government, the country
must be helpless to learn how it is being served and unless Congress
both scrutinize these things and sift them by every form of discussion,
the country must remain in embarrassing, crippling ignorance of the
very affairs which it is most important that it should understand and
direct. The informing function of Congress should be preferred even to
its legislative function. The argument is not only that discussed and
interrogated administration is the only pure and efficient
administration, but, more than that, that the only really self-
governing people is that people which discusses and interrogates its
administration.'').
---------------------------------------------------------------------------
The reporting requirement established by subsection 4058(a)
is intended as a floor, not a ceiling. The identification of
the Intelligence and Judiciary Committees reflects the
sponsors' judgment that reporting to these committees will be
appropriate in all cases. However, there will undoubtedly be
cases in which other committees--for example, the Armed
Services and Foreign Relations Committees--should likewise be
fully informed about the use of the privilege, on account of
their institutional responsibilities over the implicated
Government activity. It is assumed that the Intelligence and
Judiciary Committees will provide access to the report and
evidence transmitted under this subsection to any committee
with jurisdiction over the subject matter of the lawsuit in
question.
Subsection 4058(b) instructs the Attorney General to submit
annual reports to the House and Senate Intelligence and
Judiciary Committees on the operation and effectiveness of the
legislation for three years, and afterwards as necessary. This
reporting requirement supplements the requirements in
subsection 4058(a) by ensuring that Congress will remain
informed of the executive branch's views on the bill, as well
as on its use of the privilege, and by fostering interbranch
dialogue on the subject. Congress has requested recommendations
and reports from the President on numerous occasions. It is the
President's prerogative to decline to offer suggested
amendments to the bill under subsection 4058(b), although in so
doing, the President would be undermining his or her own
ability to advocate any desired legislative changes.
Section 4059. In a new section 4059 of the United States
Code, the bill provides a rule of construction.
This section clarifies that the bill has no effect on court
judgments unrelated to, and unaffected by, the state secrets
privilege, and that nothing in the bill is intended to
supersede any further or additional limit on the state secrets
privilege under any other provision of law. It has been argued
that section 1806(f) of FISA applies to the state secrets
privilege, in its instruction that the district court ``shall,
notwithstanding any other law, * * * review in camera and ex
parte [materials relating to electronic surveillance] * * * to
determine whether the surveillance of the aggrieved person was
lawfully authorized and conducted.''\93\ If a court were to
find that section 1806(f), or any other provision of
constitutional, statutory, or judge-made law, places limits on
the use or applicability of the state secrets privilege beyond
the limits established under this bill, then those further or
additional limits on the privilege would still apply.
---------------------------------------------------------------------------
\93\50 U.S.C. Sec. 1806(f) (2000); see also In re Nat'l Sec. Agency
Telecommunications Records Litigation, 2008 WL 2673772, at *1 (N.D.
Cal. July 2, 2008) (finding that ``FISA preempts the state secrets
privilege in connection with electronic surveillance for intelligence
purposes and would appear to displace the state secrets privilege for
purposes of plaintiffs' claims'').
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Section 3. Severability
This section clarifies that if any provision of the bill is
held to be unconstitutional, the remainder of the bill shall
not be affected thereby.
Section 4. Application to pending cases
This section clarifies that the bill applies to any Federal
civil case pending on or after the date of its enactment.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S.
2533, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:
July 11, 2008.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2533, the State
Secrets Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 2533--State Secrets Protection Act
CBO estimates that implementing S. 2533 would have no
significant impact on the federal budget. The bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
S. 2533 would codify certain practices and set limits on
the federal government's use of the state secrets privilege.
Under a Supreme Court ruling, the government can assert the
state secrets privilege to withhold certain evidence that, if
released, could harm national security. The bill would require
the government to submit documents explaining the need for the
privilege and allow judges to appoint experts to assess the
validity of the government's claims. Finally, the bill would
require the Attorney General to submit a report detailing
instances when the federal government asserted the state
secrets privilege.
The government has invoked the state secrets privilege 40
times in the last five years. Based on information obtained
from the Department of Justice, CBO expects that the bill could
alter and possibly increase litigation duties of federal
attorneys. CBO estimates, however, that any resulting increase
in federal spending would total less than $500,000 a year,
assuming the availability of appropriated funds. Enacting S.
2533 would not affect direct spending or revenues.
The CBO staff contacts for this estimate are Leigh Angres
and Jeffrey LaFave. The estimate was approved by Theresa Gullo,
Deputy Assistant Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 2533.
VI. Conclusion
By prompting the courts to apply the state secrets
privilege in a clear, standardized, and rigorous way, the State
Secrets Protection Act protects fundamental values, including
constitutional rights, individual liberties, checks and
balances, accountable Government, and access to justice. At the
same time, by reinforcing the privilege and providing numerous
procedural safeguards, the bill protects national security. Its
systematic approach is a win-win for the rule of law and for
the Nation's policy interests.
VII. MINORITY VIEWS
----------
MINORITY VIEWS FROM SENATORS HATCH, GRASSLEY, KYL, SESSIONS, GRAHAM,
CORNYN, BROWNBACK AND COBURN
The protection of state secrets in civil lawsuits forces us
to weigh some of our most deeply held values against one
another. On one side of this issue are the important values of
open government and the principle that individuals who allege
that they have been wronged deserve their day in court. On the
other side is the imperative that we protect national security,
which often means protecting military and intelligence secrets
from disclosure through the civil justice process.
Where the interests of open government and national
security are in tension, it is important to strike a reasonable
and workable balance between two legitimate but competing
interests: the right of the people to know how their government
works and the sometimes countervailing need of government to
observe secrecy so that it can act effectively to protect
national security, without which all the rights of the people
would be in serious jeopardy.
Throughout our nation's history, two coordinate branches,
the Executive and the Judiciary, have worked to strike an
appropriate balance between these core values. This balance is
reflected in the well-settled doctrine that courts have crafted
to govern the state secrets privilege. Through a long history
of constitutional and common law deliberation, the Executive
and Judicial branches have struck a workable and durable
compromise--one with which Congress ought not tamper without
significant justification and circumspection.
Because the compromise struck by our coordinate branches of
government sets the right balance between openness, justice,
and national security, and because we believe that S. 2533
disrupts this balance in a way that makes it too difficult for
the government to protect national security secrets, we oppose
S. 2533, the ``State Secrets Protection Act.''
HISTORY AND CONTENT OF THE STATE SECRETS PRIVILEGE
The doctrines that govern the privilege have been crafted
by the Judicial Branch, and are deeply rooted in both the
common law and the Constitution's separation of powers. The
Common Law roots of the privilege date back at least to the
early 17th Century. Edward Coke reported that a court in the
early 1600s held that ``concerning matters of state, which are
arcana imperii [state secrets],\1\ it is met they should be
kept sub sigillo concilii, and in secret.''\2\ By the time of
the framing of the Constitution, the state secrets privilege
was so enshrined in the common law that Blackstone took note of
the privilege in his Commentaries on the Laws of England.\3\
---------------------------------------------------------------------------
\1\Black's Law Dictionary 135 (3d ed. 1933).
\2\See William G. Weaver & Danielle Escontrias, Origins of the
State Secrets Privilege 17 (2008) (unpublished manuscript) (quoting 12
Co. Rep. 50, 53 (c. 1607)).
\3\William Blackstone, Commentaries on the Laws of England 230-31
(photo. reprint 1992) (1765) (``[A]rcana imperii [state secrets] * * *
was not suffered to be pried into by any but such as were initiated in
it's [sic] service.'').
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Cases involving whether a court may constitutionally force
the Executive Branch to disclose secret information go back to
the earliest days of our republic.\4\ In issuing a subpoena
duces tecum to President Jefferson for documents relevant to
the treason trial of Aaron Burr, Chief Justice John Marshall
stated that ``If it does contain any matter which it would be
imprudent to disclose, which it is not the wish of the
Executive to disclose, such matter, if it be not immediately
and essentially applicable to the point, will, of course, be
suppressed.''\5\
---------------------------------------------------------------------------
\4\See United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (No.
14692D); see also In re United States, 872 F.2d 472, 474-75 (D.C. Cir.
1989) (tracing the roots of the privilege in this country to United
States v. Burr).
\5\Burr, 25 F.Cas. at 37.
---------------------------------------------------------------------------
The evidentiary use of the state secrets privilege in the
United States has its modern roots in the Supreme Court case of
United States v. Reynolds.\6\ The privilege allows the
government to withhold information from discovery when
disclosure would be inimical to national security. The
privilege is rooted in constitutional separation of powers
principles as well as in the common law.\7\ The privilege may
be asserted by the government to resist discovery of classified
information in a civil suit, and the government may intervene
in a lawsuit between two private parties to prevent the
production of documents that are protected by the privilege.
---------------------------------------------------------------------------
\6\345 U.S. 1 (1953). The Reynolds case has been criticized as
being interpreted on an incorrect understanding of the facts. See S.
Rep. No. 110-TBA at 3 n.3 (2008) (draft Committee report circulated by
Chairman Leahy to accompany S. 2533). The state secrets privilege
existed before Reynolds, and has been applied in scores of cases since.
In Reynolds, Chief Justice Vinson, who had served in all three branches
of government, set out a workable framework for analyzing assertions of
the privilege. This framework has since been adopted by every court
that has faced these questions. That the Truman administration may or
may not have overstated their case one time over a half-century ago
does not, in our view, impeach the validity of the court-crafted state
secrets doctrine.
\7\See United States v. Nixon, 418 U.S. 683, 710 (1974) (``Nowhere
in the Constitution * * * is there any explicit reference to a
privilege of [Presidential] confidentiality, yet to the extent this
interest relates to the effective discharge of a President's powers, it
is constitutionally based.'').
---------------------------------------------------------------------------
The privilege applies when a court is satisfied ``from all
the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not
be divulged.''\8\ To invoke the privilege, the government must
first submit a formal claim of privilege, signed by the head of
the department that has control over the matter after actual
personal consideration by that department head.\9\ The court,
not the Executive Branch, makes the ultimate determination as
to whether the privilege applies.\10\ In making this
determination, courts give ``utmost deference'' to the
determinations of the Executive Branch regarding the national
security implications of disclosing the information.\11\ The
degree to which the court may ``probe in satisfying itself''
that the privilege is properly invoked depends on ``the showing
of necessity which is made'' by the party seeking
production.\12\ Thus, when ``there is a strong showing of
necessity, the claim of privilege should not be lightly
accepted.''\13\ However, ``even the most compelling necessity
cannot overcome the claim of privilege if the court is
ultimately satisfied that military secrets are at stake.''\14\
---------------------------------------------------------------------------
\8\Reynolds, 345 U.S. at 10.
\9\See id., at 7.
\10\Id. at 8 (``The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the privilege is
designed to protect.'').
\11\See, e.g., Nixon 418 U.S. 683.
\12\Reynolds, 345 U.S. at 11.
\13\Id.
\14\Id.
---------------------------------------------------------------------------
REASONS FOR OPPOSITION TO S. 2533
We oppose the bill because the existing case law strikes an
appropriate balance between civil justice and national
security, which the bill risks upsetting. Courts have crafted
state secrets doctrine to give themselves the necessary tools
to adjudicate cases and controversies that come before them,
while being mindful of the Executive Branch's unique and
superior expertise on matters of national security. The bill
erases this constitutional and common law doctrine of the
courts, and replaces it with a new and unproven scheme that
risks making the protection of national security secrets too
difficult.
I. The state secrets doctrine as developed by the courts strikes the
right balance between the Judicial Branch's interest in doing
justice and the Executive Branch's interest in protecting
national security secrets.
The bill is unnecessary because judges already have the
necessary tools and procedures to adjudicate state secrets
cases. The courts have carefully crafted state secrets doctrine
to give themselves wide procedural latitude, and to preserve
for themselves the ultimate determination of whether the
government has proven that the state secrets privilege is
properly invoked. As Senator Kennedy said in his introduction
of the bill, ``many of the[] powers'' contained in the act
``are already available to courts'' under settled state secrets
doctrine.\15\ Because courts already have the powers they need
to adjudicate these cases, legislative intervention is not
urgent.
a. Because judges already have the tools and procedures
that they need to adjudicate cases involving the
state secrets privilege, the bill is unnecessary if
not harmful.
---------------------------------------------------------------------------
\15\154 Cong. Rec. S198-02 (2008) (statement of Sen. Kennedy).
---------------------------------------------------------------------------
The procedural latitude that is characterized by proponents
of the bill as ``lack of uniformity'' is a feature, not a
defect, of the state secrets doctrine.\16\ District judges have
broad latitude in crafting the appropriate procedures for
determining whether the privilege exists, and ``procedural
innovation'' is encouraged.\17\ Courts have built great
flexibility into the state secrets doctrine to allow themselves
the latitude to strike an appropriate balance between the
rights of litigants and the needs of national security on a
case-by-case basis. As the DC Circuit noted, ``there is
considerable variety in the situations in which a state secrets
privilege may be fairly asserted. We would not wish to hobble
district courts in designing procedures appropriate to novel
cases.''\18\
---------------------------------------------------------------------------
\16\See S. Rep. No. 110-TBA at 4 (2008) (draft Committee report
circulated by Chairman Leahy to accompany S.2533).
\17\Ellsberg v. Mitchell, 709 F.2d 51, 63-64 (D.C. Cir. 1983); see,
e.g., Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006) (citing
Ellsberg's call for ``procedural innovation'' in crafting procedures to
aid the court in its review of putatively privileged materials).
\18\Ellsberg, 709 F.2d at 63.
---------------------------------------------------------------------------
An example of the flexibility that courts have built into
state secrets doctrine can be seen in the Reynolds holding that
the degree to which the court may ``probe in satisfying
itself'' that the privilege is properly invoked depends on
``the showing of necessity which is made'' by the party seeking
production.\19\ Thus, when information is very important to
doing justice, courts are more skeptical of the privilege.
Similarly, courts are free to take account of the level of
danger posed by the particular evidence that they are
considering.\20\ The interests of justice and national security
are different in every case, and current doctrine gives courts
the flexibility to weigh them according to each unique set of
facts and circumstances.
---------------------------------------------------------------------------
\19\Reynolds v. United States, 345 U.S. 1, 11 (1953).
\20\Id. at 9-10.
---------------------------------------------------------------------------
A good example of a judge exercising this latitude can be
found in Hepting v. AT&T.\21\ In that case, Judge Vaughn Walker
of the Northern District of California used many of the tools
contained in the bill in the process of thoroughly inspecting
(and ultimately rejecting) the government's assertion of the
state secrets privilege. Judge Walker ordered an in camera and
ex parte review of the purportedly privileged materials, and
proposed appointing an expert witness pursuant to Federal Rule
of Evidence 706 to assist him in weighing the materials'
national security import. Judge Walker's decision favoring the
plaintiffs in Hepting was reviewed by the Ninth Circuit on an
interlocutory basis. The Hepting case belies two of the key
assumptions motivating the bill--that courts are unable to
thoroughly review assertions of the state secrets privilege and
that the government always prevails when the privilege is
asserted.
---------------------------------------------------------------------------
\21\439 F. Supp. 2d 974 (N.D. Cal. 2006).
---------------------------------------------------------------------------
The fact that courts sometimes exercise their procedural
discretion to conduct a less searching review of the privilege
than in cases such as Hepting does not mean that those courts
are abdicating their duty to determine whether the Executive's
assertion of the privilege is valid. It is central to state
secrets doctrine that even after the Executive Branch has
formally asserted the state secrets privilege, judges still
have the ultimate authority to determine whether the evidence
is covered by the privilege.\22\ Executive claims of privilege
are not to be lightly accepted by the courts.\23\ Under the
courts' state secret doctrine, in theory and in practice, the
Judiciary has provided the final word.
---------------------------------------------------------------------------
\22\See Reynolds, 345 U.S. at 9-10.
\23\See id. at 11; See also, e.g., Al-Haramain Islamic Found., Inc.
v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (``We take very seriously
our obligation to review the documents with a very careful, indeed a
skeptical, eye, and not to accept at face value the government's claim
or justification of privilege.'').
---------------------------------------------------------------------------
The bill would supplant the flexibility that courts have
given themselves with a rigid and mandatory regime. In doing
so, it would stifle the procedural innovation that courts have
said is crucial to adjudicating state secret claims in the
variety of circumstances in which they arise.
b. Under the Reynolds compromise, the state secrets
privilege cannot be--and has not been--lightly
invoked.
While current state secrets doctrine gives courts great
latitude in crafting their procedures, it imposes strict rules
on the Executive Branch to ensure that the privilege cannot be
invoked lightly. To invoke the privilege, the Executive Branch
must first submit a formal claim of privilege, signed by the
head of the department that has control over the matter.\24\
That department head must have actually personally considered
the evidence, and determined that it is privileged.\25\ After
these gate-keeping formalities are met, the government still
carries the burden of establishing the privilege.\26\
---------------------------------------------------------------------------
\24\Reynolds, 345 U.S. at 7-8.
\25\Id.
\26\El-Masri v. United States, 479 F.3d 296, 305 (4th Cir. 2007).
---------------------------------------------------------------------------
The evidence shows that courts demand, and the government
supplies, extensive evidence of the privilege's applicability
before the privilege is upheld. In upholding assertions of the
state secrets privilege in high-profile cases just last year,
both the Ninth and Fourth Circuits described the extensively
detailed evidence that the government provided in support of
its privilege claim.\27\
---------------------------------------------------------------------------
\27\See Al-Haramain, 507 F.3d at 1203-04 (``We are satisfied that
the basis for the privilege is exceptionally well documented. Detailed
statements underscore that disclosure of information concerning the
Sealed Document and the means, sources and methods of intelligence
gathering in the context of this case would undermine the government's
intelligence capabilities and compromise national security.''); El-
Masri 479 F.3d at 312 (``[T]he reasons for the United States' claim of
the state secrets privilege and its motion to dismiss were explained
largely in the Classified Declaration, which sets forth in detail the
nature of the information that the Executive seeks to protect and
explains why its disclosure would be detrimental to national
security.'').
---------------------------------------------------------------------------
It has been said that Executive claims of the privilege
rarely fail in court.\28\ Perhaps this is in part because the
procedural mechanism requiring a formal claim of privilege
signed by a department head after personal consideration
frequently accomplishes its gate-keeper role of preventing
spurious assertions of the state secrets privilege.\29\
---------------------------------------------------------------------------
\28\S. Rep. No. 110-TBA at 12 (2008) (Majority report circulated by
Chairman Leahy to accompany S.2533).
\29\Several academics have accused the Bush Administration of
invoking the state secrets privilege more often than its predecessors.
However, the only thorough, quantitative study of which we are aware
indicates that, while the raw number of assertions of the privilege has
increased in recent years, the Bush Administration has not
substantively expanded the types of cases in which the privilege is
asserted. See Robert M. Chesney, State Secrets and the Limits of
National Security Litigation, 75 Geo. Wash. L. Rev. 1249 (2007).
---------------------------------------------------------------------------
Current state secrets doctrine strikes many delicate
balances: between national security and the rights of
litigants; between the need for rules by which a claim of
privilege can be judged and the need for flexibility in
responding to each case's facts and equities; and between the
Executive Branch's mandate to protect national security and the
Judicial Branch's mandate to uphold the law in individual cases
and controversies. These balances should not be lightly
discarded.
II. The bill disrupts the balance struck by the courts, and makes it
too difficult for the government to protect national security
secrets.
Courts have developed the current state secrets doctrine
through the common law process, and they retain the power to
change it through that same process. The Judicial Branch has
not sought to aggrandize the additional powers contained in the
bill. In fact, it seems clear that courts crafted the state
secrets doctrine to give deference to the Executive Branch
because they were well aware of their own institutional
limitations. Courts remain free to expand or contract the
extent of their review under the state secrets doctrine as far
as the Constitution allows. Perhaps courts could even accrue to
federal judges the full powers contained in the bill. That
courts have declined to aggrandize such additional powers
should be powerful counsel to Congress as it considers
rebalancing the courts' doctrine. Judges have consistently held
that the Executive Branch is better positioned to weigh matters
of national security than the Judicial Branch. Congress should
not overrule the Judiciary when the Judiciary itself believes
that judicial deference to executive expertise in national
security matters is proper.
The bill alters the balance struck by current state secrets
doctrine in several ways that could pose risks to national
security. Specifically, the bill: (a) lowers the level of
deference that courts give to Executive assertions of the
privilege; (b) raises the threshold that the Executive Branch
must meet to withhold state secrets; (c) imposes impossible
standards of proof against the government; (d) makes it more
difficult to protect state secrets once they have been
disclosed in litigation; and (e) makes it much more difficult
for courts to dispose of meritless cases by threshold dismissal
or summary judgment.
a. By lowering the standard of deference that courts give
to Executive branch assertions of the privilege,
the bill invites courts to substitute their
judgment for that of the Executive Branch in
national security matters.
Under state secrets doctrine, courts give ``utmost
deference'' to the Executive Branch's determination that
materials are covered by the state secrets privilege. This
``utmost deference'' standard is the standard of deference most
frequently adopted by courts in examining assertions of the
state secrets privilege.\30\
---------------------------------------------------------------------------
\30\See, e.g., United States v. Nixon, 418 U.S. 683 (1974); In re
United States, 872 F.2d 472 (D.C. Cir. 1989); Kasza v. Browner, 133
F.3d 1159 (9th Cir. 1998); Black v. United States, 62 F.3d 1115 (8th
Cir. 1995); El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007);
Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544 (2d Cir. 1991);
McDonnell Douglas Corp. v. United States, 323 F.3d 1006 (Fed. Cir.
2003).
---------------------------------------------------------------------------
``Utmost deference'' is appropriate when a court reviews
the national security determinations of the Executive Branch.
The Constitution gives the Executive Branch far greater power
and authority over matters of national security than it gives
to the Judicial Branch.\31\ This constitutional separation of
powers is reflected in the reality that the Executive branch
department head who asserts the state secrets privilege will
have national security expertise, intelligence, and staff that
dwarf that of the District Judge who reviews that assertion of
the privilege.\32\
---------------------------------------------------------------------------
\31\Compare U.S. Const., Art. II with id. at Art. III.
\32\Even when holding against the government in national security
cases, courts acknowledge the Executive Branch's superior national
security expertise. See, e.g., Boumediene et al. v. Bush, 2008 WL
2369628 (U.S.) slip op. (Kennedy, J. at p.68) ( ``Unlike the President
and some designated Members of Congress, neither the members of this
Court nor most federal judges begin the day with briefings that may
describe new and serious threats to our Nation's security.'').
---------------------------------------------------------------------------
Attorney General Michael Mukasey ably summarized the case
law regarding the standard of deference in his March 31, 2008,
letter to the Committee:
To be sure, under current law it is the province of
the Judicial branch to determine whether the state
secrets privilege has been invoked properly. It is well
settled, however, that the courts should make that
determination by according the ``utmost deference'' to
the expertise and judgment of national-security
officials. E.g., Halkin v. Helms, 598 F.2d 1, 9 (D.C.
Cir. 1978) (``Courts should accord the `utmost
deference' to executive assertions of privilege upon
grounds of military or diplomatic secrets.'') (quoting
Nixon, 418 U.S. at 710). As many courts have
recognized, the ``utmost deference'' to the judgment of
the Executive branch is appropriate not only for
constitutional reasons, but also for practical reasons,
because national security officials ``occupy a position
superior to that of the courts in evaluating the
consequences of a release of sensitive information.''
El-Masri, 479 F.3d at 305; see also Al-Haramain Islamic
Foundation, Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir.
2007) (``[W]e acknowledge the need to defer to the
Executive on matters of foreign policy and national
security and surely cannot legitimately find ourselves
second guessing the Executive in this arena.''). As the
courts have recognized, ``[t]he significance of one
item of information may frequently depend upon
knowledge of many other items of information,'' and
``[w]hat may seem trivial to the uninformed, may appear
of great moment to one who has a broad view of the
scene and may put the questioned item of information in
its proper context.'' United States v. Marchetti, 466
F.2d 1309, 1318 (4th Cir. 1972). ``[C]ourts are not,''
and should not be, ``required to play with fire and
chance further disclosure--inadvertent, mistaken, or
even intentional--that would defeat the very purpose
for which the privilege exists.'' Sterling v. Tenet,
416 F.3d 338, 344 (4th Cir. 2005).\33\
---------------------------------------------------------------------------
\33\Letter of Michael B. Mukasey to Patrick J. Leahy, March 31,
2008, at 3-4.
The bill originally contained no standard of deference. At
the Committee's meeting on April 24, 2008, the Committee
adopted the Feinstein Amendment to insert a ``substantial
weight'' standard of deference into the bill. At a minimum,
giving ``substantial weight'' to a government assertion of the
privilege is significantly less than ``utmost deference.'' But
the Feinstein Amendment goes on to specify that ``The court
shall weigh the testimony of a government expert in the same
manner as the court weighs, and along with, any other expert
testimony in the applicable case.'' This means that a court
must give the same amount of deference to the head of an
Executive Branch agency testifying to protect state secrets as
the court gives to an expert witness seeking their disclosure--
no more, no less. Courts may not weigh the testimony of a
government state secret witness more heavily, despite that he
or she is an officer of a coordinate branch of government
charged with protecting the national security. This is not
deference at all.
By putting the Executive Branch's testimony about national
security matters on the same footing as the testimony of ``any
other expert,'' the bill elevates judicial judgment above
executive judgment in an area--national security--where the
judicial branch is ill-equipped and ill-suited to handle such a
responsibility.
Senator Kyl circulated an amendment that would have
required courts to give the Executive Branch ``utmost
deference.'' The Kyl Amendment was not taken up by the
Committee.
b. By raising the threshold that the government must meet
to protect state secrets, the bill risks disclosure
of matters which, in the interest of national
security, should not be divulged.
Current doctrine protects material as a state secret when
``there is a reasonable danger'' that disclosure ``will expose
military matters which, in the interest of national security,
should not be divulged.''\34\ The bill changes this definition
to afford protection only when the evidence is ``reasonably
likely to cause significant harm'' to national security.\35\
Thus, where the government currently needs to show ``a
reasonable danger,'' under the bill the government would need
to show a ``reasonable likel[ihood].'' Where the government
currently needs to show that ``in the interest of national
security, [the information] should not be divulged,'' under the
bill the government would need to show that disclosure would
likely result in ``significant harm.'' These changes would make
it more difficult for the government to protect national
security secrets.
---------------------------------------------------------------------------
\34\Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1196
(9th Cir. 2007).
\35\State Secrets Protection Act, S. 2533, 110th Cong. Sec. 4051
(2008).
---------------------------------------------------------------------------
The ``reasonable danger'' standard has been almost
universally applied by courts in state secrets cases, in both
cases where the government's claim of privileged prevailed,\36\
and in cases where the government's claim of privilege
failed.\37\ By contrast, we are unaware of any case that adopts
the bill's ``reasonably likely to cause significant harm''
standard.
---------------------------------------------------------------------------
\36\See, e.g., El-Masri v. United States, 479 F.3d 296 (4th Cir.
2007); Al-Haramain, 507 F.3d 1190.
\37\See, e.g., Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal.
2006).
---------------------------------------------------------------------------
The ``reasonable danger'' standard under current case law
embodies a precautionary principle that it is best to err
against exposure of national security secrets and an
acknowledgement by courts that Executive officials are better
positioned than judges to weigh matters of national security.
This standard is consistent with the Constitution's structure.
By only allowing the privilege where a court finds a likelihood
of significant harm, the bill reverses the Judiciary's wisely
deferential case law.
Senator Cornyn circulated an amendment that would have
changed the definition of ``state secret'' in the bill to track
the definition developed by courts under current case law. The
Cornyn Amendment was not taken up by the Committee.
c. The bill requires the government to meet impossible
standards to protect state secrets.
The bill contains several provisions that would, in effect,
force the government to prove a negative. For example, if a
court ruled that material was a state secret under the bill,
then the government would be required to provide a non-
privileged substitute for the material, unless the government
could show that producing such a substitute was
``impossible.''\38\ This is too high a standard. Senator
Brownback circulated an amendment that would have changed the
word ``impossible'' to ``not reasonably practical.'' The
Brownback Amendment was not taken up by the Committee.
---------------------------------------------------------------------------
\38\S. 2533 at Sec. 4055(1); see also id. at Sec. 4054(e)(1)
(establishing that evidence is subject to the state secrets privilege
if there is ``no possible means'' of effectively segregating it from
other evidence that contains a state secret).
---------------------------------------------------------------------------
d. The bill does not do enough to protect state secrets
that are disclosed in the course of litigation.
The bill would give litigants' attorneys access to evidence
that the government asserts is a state secret. If the
litigants' attorneys receive security clearances and
participate in hearings reviewing, they will be made privy to
evidence about which the state secrets privilege has been
asserted. Thus, lawyers representing plaintiffs who are suing
the government may gain access to information for the purposes
of the hearing, even if that material is ultimately determined
to be covered by the state secrets privilege. Senator Hatch's
amendment to strike the provisions in the bill relating to
attorney security clearances was rejected on a 10-8 party-line
vote, with Senator Specter passing.
The bill would authorize disclosure of sensitive national
security information to judges, court personnel, and security-
cleared counsel for the limited purpose of adjudicating the
state secrets claim. It is important to ensure that these
participants in closed hearings under the bill do not further
leak the alleged state secrets to anyone not authorized to
receive the information. Senator Specter circulated amendments
that would have made any disclosure of information obtained
through state secret litigation under the bill a crime
punishable by imprisonment. The Specter Amendments were not
taken up by the Committee.
e. The bill prevents threshold dismissal of claims.
Current case law allows courts to dismiss cases based on
the privilege ``when the very subject of the litigation is
itself a state secret,'' and there is ``no way [the] case could
be tried without compromising sensitive military secrets.''\39\
Thus, while it is well-settled that ``dismissal is appropriate
only when no amount of effort and care on the part of the court
and the parties will safeguard privileged material,'' it is
equally well-settled that ``where the very question on which a
case turns is itself a state secret, or the circumstances make
clear that sensitive military secrets will be so central to the
subject matter of the litigation that any attempt to proceed
will threaten disclosure of the privileged matters, dismissal
is the appropriate remedy.''\40\ The rule that a case may be
dismissed when the very subject matter of the case is a state
secret dates back to 1875 and Totten v. United States,\41\ in
which Totten attempted to sue the United States for breach of a
covert espionage contract. The Totten result makes sense--a
court cannot adjudicate a contract action if the terms and
existence of the contract cannot be disclosed.
---------------------------------------------------------------------------
\39\El-Masri v. Tenet, 437 F. Supp. 2d 530, 538 (E.D. Va. 2006)
(quoting Sterling v Tenet, 416 F.3d 338, 347-48 (4th Cir. 2005).
\40\Id. at 538-39.
\41\92 U.S. 105 (1875) (dismissing a claim for breach of an alleged
covert espionage contract).
---------------------------------------------------------------------------
The bill only allows dismissal on the basis of the state
secrets privilege after court review of ``all available
evidence, privileged and non-privileged,'' and then only when
(1) it is impossible to create a non-privileged substitute for
privileged information, (2) dismissal would not harm national
security, and (3) continuing the case without the evidence
would substantially impair the ability of a party to pursue a
valid defense. This would essentially eliminate the Totten
doctrine, and force courts to litigate cases ``the very subject
of [which] is itself a state secret.''
The bill actually makes a state secrets case harder to
dismiss than a case that does not involve state secrets. Under
the bill, a court is precluded from granting a motion to
dismiss that is based even in part on the state secrets
doctrine until the court has satisfied the bill's requirements,
including ``reviewing all available evidence.'' Even if the
plaintiff lacks standing to bring the action, the court could
be required to review all of the evidence before dismissing the
case. This result wastes judicial resources and encourages
abuse of process. When there are grounds for dismissal or
summary judgment that are adequate and independent of any
grounds related to the state secrets privilege, the court
should be free to dispose of the case without conducting a
wasteful hearing. Dismissal and summary judgment are important
tools for disposing of meritless litigation, and courts should
not be discouraged from using these tools simply because the
case involves state secrets.
CONCLUSION
The courts are admirably loath to overturn the judgments of
the Executive Branch on national security matters, because the
courts recognize the Executive Branch's superior knowledge of
national security. Similarly, Congress should be loath to
overturn the courts' considered judgment regarding the
appropriate legal standards to balance the interests of justice
and national security.
The bill upsets the judicially developed balance between
protection of national security and private litigants' access
to secret documents. The Judiciary has crafted state secrets
doctrine to give judges the flexibility to weigh these
interests with appropriate deference to Executive
determinations of the national interest. This judicially
crafted state secrets doctrine is sufficient. S. 2533, ``The
State Secrets Protection Act,'' is unnecessary and potentially
harmful to national security.
VIII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 2533, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
SECTION 1. SHORT TITLE.
This Act may be cited as the ``State Secrets Protection
Act''.
SEC. 2. STATE SECRETS PROTECTION.
(a) In General.--Title 28 of the United States Code is
amended by adding after chapter 180, the following:
``CHAPTER 181--STATE SECRETS PROTECTION
``Sec.
``4051. Definitions.
``4052. Rules governing procedures related to this chapter.
``4053. Procedures for answering a complaint.
``4054. Procedures for determining whether evidence is protected from
disclosure by the state secrets privilege.
``4055. Procedures when evidence protected by the state secrets
privilege is necessary for adjudication of a claim or
counterclaim.
``4056. Interlocutory appeal.
``4057. Security procedures.
``4058. Reporting.
``4059. Rule of construction.
``Sec. 4051. Definitions
``In this chapter--
``(1) the term `evidence' means any document, witness
testimony, discovery response, affidavit, object, or
other material that could be admissible in court under
the Federal Rules of Evidence or discoverable under the
Federal Rules of Civil Procedure; and
``(2) the term `state secret' refers to any
information that, if disclosed publicly, would be
reasonably likely to cause significant harm to the
national defense or foreign relations of the United
States.
``Sec. 4052. Rules governing procedures related to this chapter
``(a) Documents.--A Federal court--
``(1) shall determine which filings, motions, and
affidavits, or portions thereof, submitted under this
chapter shall be submitted ex parte;
``(2) may order a party to provide a redacted,
unclassified, or summary substitute of a filing,
motion, or affidavit to other parties; and
``(3) shall make decisions under this subsection
taking into consideration the interests of justice and
national security.
``(b) Hearings.--
``(1) In camera hearings.--
``(A) In general.--Except as provided in
subparagraph (B), all hearings under this
chapter shall be conducted in camera.
``(B) Exception.--A court may not conduct a
hearing under this chapter in camera based on
the assertion of the state secrets privilege if
the court determines that the hearing relates
only to a question of law and does not present
a risk of revealing state secrets.
``(2) Ex parte hearings.--A Federal court may conduct
hearings or portions thereof ex parte if the court
determines, following in camera review of the evidence,
that the interests of justice and national security
cannot adequately be protected through the measures
described in subsections (c) and (d).
``(3) Record of hearings.--The court shall preserve
the record of all hearings conducted under this chapter
for use in the event of an appeal. The court shall seal
all records to the extent necessary to protect national
security.
``(c) Attorney Security Clearances.--
``(1) In general.--A Federal court shall, at the
request of the United States, limit participation in
hearings conducted under this chapter, or access to
motions or affidavits submitted under this chapter, to
attorneys with appropriate security clearances, if the
court determines that limiting participation in that
manner would serve the interests of national security.
The court may also appoint a guardian ad litem with the
necessary security clearances to represent any party
for the purposes of any hearing conducted under this
chapter.
``(2) Stays.--During the pendency of an application
for security clearance by an attorney representing a
party in a hearing conducted under this chapter, the
court may suspend proceedings if the court determines
that such a suspension would serve the interests of
justice.
``(3) Court oversight.--If the United States fails to
provide a security clearance necessary to conduct a
hearing under this chapter in a reasonable period of
time, the court may review in camera and ex parte the
reasons of the United States for denying or delaying
the clearance to ensure that the United States is not
withholding a security clearance from a particular
attorney or class of attorneys for any reason other
than protection of national security.
``(d) Protective Orders.--A Federal court may issue a
protective order governing any information or evidence
disclosed or discussed at any hearing conducted under this
chapter if the court determines that issuing such an order is
necessary to protect national security.
``(e) Opinions and Orders.--Any opinions or orders issued
under this chapter may be issued under seal or in redacted
versions if, and to the extent that, the court determines that
such measure is necessary to protect national security.
``(f) Special Masters.--A Federal court may appoint a
special master or other independent advisor who holds the
necessary security clearances to assist the court in handling a
matter subject to this chapter.
``Sec. 4053. Procedures for answering a complaint
``(a) Intervention.--The United States may intervene in any
civil action in order to protect information the Government
determines may be subject to the state secrets privilege.
``(b) Impermissible as Grounds for Dismissal Prior to
Hearings.--Except as provided in section 4055, the state
secrets privilege shall not constitute grounds for dismissal of
a case or claim. If a motion to dismiss or for summary judgment
is based in whole or in part on the state secrets privilege, or
may be affected by the assertion of the state secrets
privilege, a ruling on that motion shall be deferred pending
completion of the hearings provided under this chapter, unless
the motion can be granted on grounds unrelated to, and
unaffected by, the assertion of the state secrets privilege.
``(c) Pleading State Secrets.--In answering a complaint, if
the United States or an officer or agency of the United States
is a party to the litigation, the United States may plead the
state secrets privilege in response to any allegation in any
individual claim or counterclaim if the admission or denial of
that allegation in that individual claim or counterclaim would
itself divulge a state secret to another party or the public.
If the United States has intervened in a civil action, it may
assert the state secrets privilege in response to any
allegation in any individual claim or counterclaim if the
admission or denial by a party of that allegation in that
individual claim or counterclaim would itself divulge a state
secret to another party or the public. No adverse inference or
admission shall be drawn from a pleading of state secrets in an
answer to an item in a complaint.
``(d) Supporting Affidavit.--In each instance in which the
United States asserts the state secrets privilege in response
to 1 or more claims, it shall provide the court with an
affidavit signed by the head of the executive branch agency
with responsibility for, and control over, the asserted state
secrets explaining the factual basis for the assertion of the
privilege and attesting that personal consideration was given
to the assertion of the privilege. The duties of the head of an
executive branch agency under this subsection may not be
delegated.
``Sec. 4054. Procedures for determining whether evidence is protected
from disclosure by the state secrets privilege
``(a) Asserting the State Secrets Privilege.--The United
States may, in any civil action to which the United States is a
party or in any other civil action before a Federal or State
court, assert the state secrets privilege as a ground for
withholding information or evidence in discovery or for
preventing the disclosure of information through court filings
or through the introduction of evidence.
``(b) Supporting Affidavit.--In each instance in which the
United States asserts the state secrets privilege with respect
to an item of information or evidence, the United States shall
provide the court with an affidavit signed by the head of the
executive branch agency with responsibility for, and control
over, the state secrets involved explaining the factual basis
for the claim of privilege. The United States shall make public
an unclassified version of the affidavit.
``(c) Hearing.--A Federal court shall conduct a hearing,
consistent with the requirements of section 4052, to examine
the items of evidence that the United States asserts are
subject to the state secrets privilege, as well as any
affidavit submitted by the United States in support of any
assertion of the state secrets privilege, and to determine the
validity of any assertion of the state secrets privilege made
by the United States.
``(d) Review of Evidence.--
``(1) Submission of evidence.--In addition to the
affidavit provided under subsection (b), and except as
provided in paragraph (2) of this subsection, the
United States shall make all evidence the United States
claims is subject to the state secrets privilege
available for the court to review, consistent with the
requirements of section 4052, before any hearing
conducted under this section.
``(2) Sampling in certain cases.--If the volume of
evidence the United States asserts is protected by the
state secrets privilege precludes a timely review of
each item of evidence, or the court otherwise
determines that a review of all of that evidence is not
feasible, the court may substitute a sufficient
sampling of the evidence if the court determines that
there is no reasonable possibility that review of the
additional evidence would change the determination on
the privilege claim and the evidence reviewed is
sufficient to enable to court to make the determination
required under this section.
``(3) Index of materials.--The United States shall
provide the court with a manageable index of evidence
it contends is subject to the state secrets privilege
by formulating a system of itemizing and indexing that
would correlate statements made in the affidavit
provided under subsection (b) with portions of the
evidence the United States asserts is subject to the
state secrets privilege. The index shall be specific
enough to afford the court an adequate foundation to
review the basis of the invocation of the privilege by
the United States.
``(e) Determinations as to Applicability of State Secrets
Privilege.--
``(1) In general.--Except as provided in subsection
(d)(2), as to each item of evidence that the United
States asserts is protected by the state secrets
privilege, the court shall review, consistent with the
requirements of section 4052, the specific item of
evidence to determine whether the claim of the United
States is valid. An item of evidence is subject to the
state secrets privilege if it contains a state secret,
or there is no possible means of effectively
segregating it from other evidence that contains a
state secret.
``(2) Admissibility and disclosure.--
``(A) Privileged evidence.--If the court
agrees that an item of evidence is subject to
the state secrets privilege, that item shall
not be disclosed or admissible as evidence.
``(B) Non-privileged evidence.--If the court
determines that an item of evidence is not
subject to the state secrets privilege, the
state secrets privilege does not prohibit the
disclosure of that item to the opposing party
or the admission of that item at trial, subject
to the Federal Rules of Civil Procedure and the
Federal Rules of Evidence.
``(3) Standard of review.--The court shall give
substantial weight to an assertion by the United States
relating to why public disclosure of an item of
evidence would be reasonably likely to cause
significant harm to the national defense or foreign
relations of the United States. The court shall weigh
the testimony of a Government expert in the same manner
as the court weighs, and along with, any other expert
testimony in the applicable case.
``(f) Non-Privileged Substitute.--If the court finds that
material evidence is subject to the state secrets privilege and
it is possible to craft a non-privileged substitute for that
privileged material evidence that provides a substantially
equivalent opportunity to litigate the claim or defense as
would that privileged material evidence, the court shall order
the United States to provide such a substitute, which may
consist of--
``(1) a summary of such privileged information;
``(2) a version of the evidence with privileged
information redacted;
``(3) a statement admitting relevant facts that the
privileged information would tend to prove; or
``(4) any other alternative as directed by the court
in the interests of justice and protecting national
security.
``(g) Refusal To Provide Non-Privileged Substitute.--In a
suit against the United States or an officer or agent of the
United States acting in the official capacity of that officer
or agent, if the court orders the United States to provide a
non-privileged substitute for evidence in accordance with this
section, and the United States fails to comply, the court shall
resolve the disputed issue of fact or law to which the evidence
pertains in the non-government party's favor.
``Sec. 4055. Procedures when evidence protected by the state secrets
privilege is necessary for adjudication of a claim
or counterclaim
``After reviewing all pertinent evidence, privileged and
non-privileged, a Federal court may dismiss a claim or
counterclaim on the basis of the state secrets privilege only
if the court determines that--
``(1) it is impossible to create for privileged
material evidence a non-privileged substitute under
section 4054(f) that provides a substantially
equivalent opportunity to litigate the claim or
counterclaim as would that privileged material
evidence;
``(2) dismissal of the claim or counterclaim would
not harm national security; and
``(3) continuing with litigation of the claim or
counterclaim in the absence of the privileged material
evidence would substantially impair the ability of a
party to pursue a valid defense to the claim or
counterclaim.
``Sec. 4056. Interlocutory appeal
``(a) In General.--The courts of appeal shall have
jurisdiction of an appeal by any party from any interlocutory
decision or order of a district court of the United States
under this chapter.
``(b) Appeal.--
``(1) In general.--An appeal taken under this section
either before or during trial shall be expedited by the
court of appeals.
``(2) During trial.--If an appeal is taken during
trial, the district court shall adjourn the trial until
the appeal is resolved and the court of appeals--
``(A) shall hear argument on appeal as
expeditiously as possible after adjournment of
the trial by the district court;
``(B) may dispense with written briefs other
than the supporting materials previously
submitted to the trial court;
``(C) shall render its decision as
expeditiously as possible after argument on
appeal; and
``(D) may dispense with the issuance of a
written opinion in rendering its decision.
``Sec. 4057. Security procedures
``(a) In General.--The security procedures established
under the Classified Information Procedures Act (18 U.S.C.
App.) by the Chief Justice of the United States for the
protection of classified information shall be used to protect
against unauthorized disclosure of evidence protected by the
state secrets privilege.
``(b) Rules.--The Chief Justice of the United States, in
consultation with the Attorney General, the Director of
National Intelligence, and the Secretary of Defense, may create
additional rules or amend the rules to implement this chapter
and shall submit any such additional rules or amendments to the
Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives and the Select
Committee on Intelligence and the Committee on the Judiciary of
the Senate. Any such rules or amendments shall become effective
90 days after such submission, unless Congress provides
otherwise. Rules and amendments shall comply with the letter
and spirit of this chapter, and may include procedures
concerning the role of magistrate judges and special masters in
assisting courts in carrying out this chapter. The rules or
amendments under this subsection may include procedures to
ensure that a sufficient number of attorneys with appropriate
security clearances are available in each of the judicial
districts of the United States to serve as guardians ad litem
under section 4052(c)(1).
``Sec. 4058. Reporting
``(a) Assertion of State Secrets Privilege.--
``(1) In general.--The Attorney General shall submit
to the Permanent Select Committee on Intelligence and
the Committee on the Judiciary of the House of
Representatives and the Select Committee on
Intelligence and the Committee on the Judiciary of the
Senate a report on any case in which the United States
asserts the state secrets privilege, not later than 30
calendar days after the date of such assertion.
``(2) Contents.--Each report submitted under this
subsection shall include any affidavit filed in support
of the assertion of the state secrets privilege and the
index required under section 4054(d)(2).
``(3) Evidence.--Upon a request by any member of the
Permanent Select Committee on Intelligence or the
Committee on the Judiciary of the House of
Representatives or the Select Committee on Intelligence
or the Committee on the Judiciary of the Senate, the
Attorney General shall provide to that member any item
of evidence relating to which the United States has
asserted the state secrets privilege.
``(4) Protection of Information.--An affidavit,
index, or item of evidence provided under this
subsection may be included in a classified annex or
provided under any other appropriate security measures.
``(b) Operation and Effectiveness.--
``(1) In general.--The Attorney General shall deliver
to the committees of Congress described in subsection
(a) a report concerning the operation and effectiveness
of this chapter and including suggested amendments to
this chapter.
``(2) Deadline.--The Attorney General shall submit a
report under paragraph (1) not later than 1 year after
the date of enactment of this chapter, and every year
thereafter until the date that is 3 years after that
date of enactment. After the date that is 3 years after
that date of enactment, the Attorney General shall
submit a report under paragraph (1) as necessary.
``Sec. 4059. Rule of construction
``Nothing in this chapter--
``(1) is intended to supersede any further or
additional limit on the state secrets privilege under
any other provision of law; or
``(2) may be construed to preclude a court from
dismissing a claim or counterclaim or entering judgment
on grounds unrelated to, and unaffected by, the
assertion of the state secrets privilege.''.
(b) Technical and Conforming Amendment.--The table of
chapters for title 28, United States Code, is amended by adding
at the end the following:
``181. State secrets protection...................................4051''
SEC. 3. SEVERABILITY.
If any provision of this Act, any amendment made by the
Act, or the application of such provision or amendment to any
person or circumstances is held to be invalid, the remainder of
this Act, the amendments made by the Act, and the application
of such provisions to persons or circumstances other than those
to which it is held invalid, shall not be affected thereby.
SEC. 4. APPLICATION TO PENDING CASES.
The amendments made by this Act shall apply to any civil
case pending on or after the date of enactment of this Act.