Wednesday, February 11, 2009
State Secrets May Not Stay Under Wraps
Five members of Congress have reintroduced legislation designed to partially lift the shroud from around state secrets.
The legislation, called the State Secret Protection Act, would provide for judicial review of state secrets privilege when invoked by the government.
The state secrets privilege allows the government to withhold evidence in litigation if its disclosure would harm national security. The purpose of the privilege is to protect legitimate state secrets. But the bill's sponsors argue that, if not properly policed, it can be abused to conceal embarrassing or unlawful conduct that pose no threat to national security.
For example, in 1953, the widows of three civilian engineers filed a civil case against the government for negligence in a military airplane crash that killed their husbands. The government, citing national security concerns, refused to provide an accident report of the crash. The Supreme Court, in U.S. v. Reynolds, upheld that refusal, without ever reviewing the documents. When the report was discovered through an Internet search 50 years later, it did not reveal any secret military information but, instead, showed the government’s negligence in the crash.
Sponsors say the Bush administration used the privilege to dismiss cases challenging aspects of its war on terror – including rendition, torture and warrant less wiretapping.
The bill, which has bipartisan support, would require a court to make an independent assessment of the privilege claim and would allow evidence to be withheld only if “public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States.” Under the bill, when this standard is met, a judge must protect the evidence from harmful disclosure.
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