Monday, November 26, 2007

The State Secrets Defense

Up to the present, the government has been able to successfully stop civil suits for illegal domestic spying by simply uttering the magic words "State Secrets." At that point, many judges shrug their shoulders and dismiss the case without reviewing any of the evidence that would show wrongdoing. Some judges, however, haven't been that easy and have taken steps that would allow the cases to proceed. Congress, which has also been stymied in hearings by the uttering of those magic words, has finally decided to get into the act, according to this AP article published in today's Los Angeles Times.

Under grilling from lawmakers and attack by lawsuits alleging Bush authorized the illegal wiretapping of Americans, the White House has invoked a legal defense known as the "state secrets" doctrine -- a claim that the president has inherent and unchecked power to shield national security information from disclosure, either to plaintiffs in court or to congressional overseers.

Sen. Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, believes the White House has gone too far in invoking state secrets to halt civil lawsuits.

"We have the authority to define the state secrets doctrine," Specter says. "I don't think that the simple assertion of state secrets ought to be the end of the matter."

Specter, Sen. Edward Kennedy, D-Mass., and others are working on legislation that would direct federal judges to review the president's state secrets claims and allow cases with merit to go forward. ...

The draft legislation is modeled on procedures used in criminal cases that involve classified information. The Classified Information Protection Act lets judges review classified information a criminal defendant wants to use in his defense, but which could compromise national security if it were released publicly. The law allows the court to delete classified passages, substitute summaries of the information, or substitute a statement of facts that the classified information would prove.

The measure could become part of the Senate's new eavesdropping law, expected to be voted on in early December, the aides said.

The doctrine, enunciated in a case from 50 years ago which disallowed a wrongful death suit by the families of those killed in a military plane crash because to allow the case to proceed would compromise an intelligence mission, has been upheld since then. (Ironically, it turns out the government wasn't being truthful in that case. No state secrets were directly involved.)

It's time that Congress got involved by passing a bill which provides the mechanism for allowing cases to go forward if they have merit. With a statute in place, those who believe their 4th Amendment rights have been violated without cause will finally have a remedy and the "state secrets" can be protected at the same time. It's especially important because the current Supreme Court has pretty much signaled that it will side with the government on the issue absent such legislation.

And at the same time, Congress will have sent a signal to the administration that the Authorization for the Use of Military Force passed after 9/11 did not include a blank check for terrorizing Americans.

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