Kennedy Introduces State Secrets Protection Act

Statement

Today, Senator Specter and I are introducing the "State Secrets Protection Act." I've been working on this bill with Senator Specter for several months, and I thank him for his commitment and leadership on this very important issue. I hope that our collaboration on this legislation will demonstrate that even the most sensitive problems can be addressed through bipartisan cooperation if we keep the interests of the nation front-and-center and roll up our sleeves to do the work of seeking a realistic and workable solution. The State Secrets Protection Act is an essential response to a pressing need.

For years, there has been growing concern about the state secrets privilege. It's a common law privilege that lets the government protect sensitive national security information from being disclosed as evidence in litigation. The problem is that sometimes plaintiffs may need that information to show that their rights were violated. If the privilege is not applied carefully, the government can use it as a tool for cover-up, by withholding evidence that is not actually sensitive. The state secrets privilege is important, but there's a risk it will be overused and abused.

The privilege was first recognized by the Supreme Court in 1953, and it's been asserted since then by every administration, Republican and Democratic. Under the Bush Administration, however, 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.

Many have recognized the need for congressional guidance on this issue. The American Bar Association recently issued a report "urg[ing] Congress to enact legislation governing federal civil cases implicating the state secrets privilege." 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." Leading constitutional scholars sent a letter to Congress emphasizing 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."

The State Secrets Protection Act we are introducing responds to this need by creating a civil version of CIPA. The Act provides guidance to the federal courts in handling assertions of the privilege in civil cases, and it restores checks and balances to this crucial area of law by placing constraints on the application of state secrets doctrine. The Act will strengthen our national security by requiring judges to protect all state secrets from disclosure, and it will strengthen the rule of law by preventing misuse of the privilege and enabling more litigants to achieve justice in court.

Recognizing that state secrets must be protected, the Act enables the executive branch to avoid publicly revealing evidence if doing so might disclose a state secret. 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 is privileged and may not be released for any reason. 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 sensitive information.

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. A recently declassified report shows that the executive branch abused the state secrets privilege in the very Supreme Court case, United States v. Reynolds (1953), that serves as the basis for the privilege today. In Reynolds, an accident report was kept out of court due to the government's claim that it would disclose state secrets. The court never even looked at the report. Now that the report has been made public, we've learned that in fact it contained no state secrets whatever—but it did contain embarrassing information revealing government negligence.

In recent years, federal courts have applied the Reynolds precedent to dismiss numerous cases—on issues ranging from torture, to extraordinary rendition, to warrantless wiretapping—without ever reviewing the evidence. Some courts have even upheld the executive's claims of state secrets when the purported secrets were publicly available, as in the case of El-Masri v. Tenet.

In that case, there was extensive evidence in the public record that the plaintiff was kidnapped and tortured by the CIA on the basis of mistaken identity, but the court simply accepted at face value the government's claim that litigation would require disclosure of state secrets. The court dismissed Mr. El-Masri's case without even evaluating the evidence or considering whether the case could be litigated on other evidence.

When federal courts accept the executive branch's state secrets claims as absolute, our system of checks and balances breaks down. By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, courts give the executive branch the ability to violate American laws and constitutional rights without any accountability or oversight, and innocent victims are left unable to obtain justice. The kind of abuse that occurred in Reynolds will no longer be possible under the State Secrets Protection Act.

The Act requires courts to examine the evidence for which the privilege is claimed, in order to determine whether the executive branch has validly invoked the privilege. The court must look at the actual evidence, not just government affidavits about the evidence, and make its own assessment of whether information is covered by the privilege. Only after a court has considered the evidence and found that it provides a valid legal defense can it dismiss a claim on state secrets grounds.

The Act also gives parties an opportunity to make a preliminary case with their own evidence, and it allows courts to develop solutions to let lawsuits proceed, such as by directing the government to produce unclassified substitutes for secret evidence. Many of these powers are already available to courts, but they often go unused. In addition, the Act draws on CIPA to include provisions for congressional reporting that will ensure an additional layer of oversight.

I'm pleased that the senior Senator from Pennsylvania and I have been able to work together to produce this bill. We expect to have a hearing soon on the state secrets privilege in the Judiciary Committee under the leadership of Chairman Leahy. I look forward to a full airing of the issues and the important feedback that will come from the Committee's thoughtful consideration of the legislation.

In particular, as the bill moves forward, we intend to continue to explore the possibilities for providing relief to plaintiffs who have a winning case, but cannot get a trial because every piece of evidence they need is privileged. This is an extremely difficult subject, which Congress should address if we can find a fair way to do so that will also protect legitimate secrets. We will also explore other measures to make the bill stronger, such as providing expedited security clearance reviews for attorneys.

Under the State Secrets Protection Act, the nation will be able to preserve its commitment to individual rights and the rule of law, without compromising its national defense or foreign policy. Congress has clear constitutional authority to regulate the rules of procedure and evidence for the federal courts, and it's long past time for us to exercise this authority on such an important issue. I urge my colleagues in the Senate to pass this needed legislation as soon as possible.

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