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July 29, 2008

Hon. John Conyers, Jr., Chairman
Hon. Lamar S. Smith, Ranking Member
Committee on the Judiciary
United States House of Representatives
Washington, D.C. 20515

Re: The State Secrets Protection Act of 2008, H.R. 5607

Dear Chairman Conyers and Ranking Member Smith:

The House Judiciary Committee is scheduled to consider key legislation to narrow the scope of the state secrets privilege this week.  Public Citizen strongly supports the State Secrets Protection Act of 2008, H.R. 5607, which would require independent judicial review of claims of the state secrets privilege by the government.

An open and accountable government is the cornerstone of our democracy. As Americans, it is our right and our duty to know how government operates; transparency is one of the great checks we have against corruption and tyranny. Yet, during the past seven years, the Bush Administration has gone to extremes to keep the workings of his administration in the shadows, away from public scrutiny.  The broad and excessive use of the state secrets privilege exemplifies this abuse or power. 

In recent legal challenges regarding warrantless wiretapping, torture, and extraordinary rendition, the doors to justice have been blocked repeatedly by the Administration’s claims of state secrets privilege.  The courts must have the authority and guidance to adequately and independently judge assertions of the state secrets privilege.

For years the courts have routinely and adequately resolved evidentiary issues regarding national security in criminal cases under the Classified Information Procedures Act (CIPA).  However, in the civil justice system, the Bush Administration has been permitted to shield itself from accountability because of the judiciary’s extreme deference to the Administration’s assessment of the likely harm from disclosures.  The review and application of the privilege should be regularized and made more uniform throughout the judiciary, but equally important is the need to rebalance the authority of the co-equal branches of government as envisaged by our founders to restore our civil justice system and our civil liberties. 

During these troubled and uncertain times, Americans, shut out by secrecy and excessive executive power, have been calling upon Congress to reassert the balance of powers between the co-equal branches.  H.R. 5607 responds to this call, restoring the checks and balances by providing measured and necessary judicial review of claims of the state secrets privilege.

We thank you for your consideration of this key legislation and urge you to vote in favor of H.R. 5607 without amendment.  We would welcome an opportunity to discuss the issue of the state secrets privilege in more detail with you or your staff.  Please do not hesitate to contact Angela Canterbury on this or any other issue of mutual interest. 

Sincerely,

David Arkush  
Director, Congress Watch
Public Citizen

Angela Canterbury
Advocacy Director, Congress Watch
Public Citizen

cc:  Members of the House Judiciary Committee

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