Rep. Trent Franks (R-Ariz.) says the state secrets privilege is vital now that 200 terrorists can litigate their federal detention. He questions the sanity of Democrats and says he does not support the State Secrets Privilege Act since it would prevent courts from being able to dismiss cases in which the government cannot defend itself without revealing classified information. (1:20)
Steven Shapiro of the American Civil Liberties Union says the state secrets privilege has mutated from a rule protecting genuine security interests to an alternative form of immunity in which violators of the Constitution receive dismissed cases, preventing prosecution against acts of torture and unlawful surveillance. (0:58)
The House Constitution, Civil Rights, and Civil Liberties Subcommittee met to discuss the State Secrets Protection Act of 2008. Rep. Jerrold Nadler (D-N.Y.) who introduced the legislation, said members of the Executive Branch are misusing the state secrets privilege to avoid Congressional oversight and thus, shielding itself from questions concerning spying against Americans and acts of torture committed at Guantanamo Bay. He said the act protects justice and, noting checks and balances, the Constitution. Rep. John Conyers (D-Mich.) referenced a Los Angeles Times article from 2006 that suggests over half of government information is over-classified.
Rep. Trent Franks (R-Ariz.) said disclosing classified information threatens the national security of the United States and that though a denial of access to judicial review may be disadvantageous for some, it is necessary for the safety of all Americans. Franks said that the post-September 11 era has shown the significant role of the state secrets privilege in the Department of Justice. He also said the Supreme Court has defended the privilege, adding that he finds it “shocking” that Democrats want courts to deviate from precedent as 200 detainees at Guantanamo Bay qualify for trial in American courts.
Meredith Fuchs of the National Security Archives supported the State Secrets Protection Act, saying that federal agencies often do not feel the need to disclose information without independent pressure. She said courts should have the right to consider evidence in claims of state secrets privilege, adding that courts should not refuse evidence provided by non-governmental experts. Steven Shapiro of the American Civil Liberties Union said Nadler’s legislation restores the state secrets privilege to its proper role and bring legal clarity. Shapiro said the ACLU supports the passing of the State Secrets Protection Act. Michael Vatis, a partner at Steptoe & Johnson, LLP expressed concern with a section of the act he said could be interpreted to mean that courts would analyze governmental and independent evidence equally. He said courts should exercise judgement but give substantial weight to the, potentially better-informed, government.
