State Secrets Protection Act Is Crucial for Open Government, Public Citizen Tells House Committee

July 31, 2008

State Secrets Protection Act Is Crucial for Open Government, Public Citizen Tells House Committee

Bush Administration Has Abused State Secrets Privilege, Blocked Important Legal Challenges

WASHINGTON, D.C. – Lawmakers must protect Americans’ right to an open and accountable government and curb government corruption by supporting the State Secrets Protection Act of 2008, Public Citizen wrote in a letter to members of Congress.

The State Secrets Protection Act, H.R. 5607, would require independent judicial review of claims of the state secrets privilege, which the federal government uses to ask courts to exclude evidence from a case if it might threaten national security. The bill is sponsored by Rep. Jerrold Nadler (D-N.Y.) and cosponsored by six others, including Rep. John Conyers (D-Mich.), chair of the House Judiciary Committee, which is scheduled to hold a hearing on the bill today.

Over the past seven years, the Bush administration has abused the state secrets privilege by going to extremes to keep the administration’s work in the shadows, away from public scrutiny, Public Citizen says.

“Open and accountable government is the cornerstone of our democracy,” said David Arkush, director of Public Citizen’s Congress Watch division. “The Bush administration’s excessive use of the state secrets privilege has been unacceptable. It’s nothing short of an abuse of power.”

The Bush administration’s overuse of the state secrets privilege has blocked the doors to justice in recent legal challenges against warrantless wiretapping, torture and extraordinary rendition. Public Citizen is a member of OpenTheGovernment.org, a coalition that released a report in 2007 showing that the state secrets privilege had been used 39 times in the previous six years, compared with 59 times in 24 prior years. Judges have routinely dismissed cases based solely on the claim by the executive branch that the evidence is too sensitive to reveal in court, thereby permitting the Bush administration to repeatedly shield itself from accountability.

For example, the case of Khaled El-Masri, a German citizen who sued the U.S. government for being allegedly kidnapped and flown to Afghanistan where he was interrogated and tortured as part of the CIA’s extraordinary rendition program, was blocked because the U.S. Justice Department invoked the state secrets privilege. He is still waiting for justice.

H.R. 5607 protects against this abuse of power by establishing standards for judges to decide claims of state secrets privilege and ensuring that litigants have access to justice in court. Currently, no uniform standards exist for civil cases. The legislation is modeled after the Classified Information Procedures Act, which courts use for evidentiary issues regarding national security in criminal cases.

Under the measure, judges would be required to review the information that the government wants to protect and determine whether it could harm national security if used. If the judge finds that the information is too sensitive to use, the judge must consider whether it is feasible to use a substitute, such as a summary of the information or a redacted version of a document, so the litigation can proceed.

“Americans, shut out by secrecy and excessive executive power, are calling on Congress to reassert the balance of power between the co-equal branches,” said Angela Canterbury, advocacy director for Public Citizen’s Congress Watch division. “This legislation responds to this call by restoring checks and balances and providing necessary judicial review.”

To read the letter, go to: https://www.citizen.org/our-work/government-reform/articles/state-secrets-support-letter-hr-5607.