Nadler and State Secrets

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Yesterday, Jerrold Nadler announced he will hold a hearing on state secrets on Thursday.

Congressman Jerrold Nadler (NY-08), Chair of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, will chair a legislative hearing on H. R. 984, the State Secret Protection Act of 2009, his bill to reform the state secret privilege. This hearing will examine the standard of review for what qualifies as a state secret and how best this privilege should be reformed. The hearing will take place on Thursday, June 4th at 2:00pm in Rayburn House Office Building, Room 2141, Washington, D.C.

The state secret privilege allows the government to withhold evidence in litigation if its disclosure would harm national security. The purpose of the privilege is to protect legitimate state secrets; but if not properly policed, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security. Nadler’s bipartisan bill, the State Secret Protection Act of 2009, co-sponsored by Rep. Thomas Petri (WI-6), would ensure meaningful judicial review of the privilege and prevent premature dismissal of claims. The bill aims to curb abuse of the privilege while protecting valid state secrets.

As it happens, at the same time they announced this, Nadler was speaking on a panel with me about accountability for torture (I’m looking for video–but it may take a while to find it). And he focused closely on state secrets.

Interestingly, he was speaking of state secrets as a means of accountability for not just torture but (obviously) illegal wiretapping. 

Mind you, Nadler is also pushing for an independent prosecutor on torture, so he’s not proposing lawsuits as the sole means for accountability. But he’s thinking of it as a means for accountability.

It seems there are a few problems with that. First, timing. Yes, if state secrets were changed, Binyam Mohamad’s suits could move forward. But for others, a lawsuit would just begin to wend its ways through the courts, but take years and years to resolve.

Furthermore, it’s not just state secrets that protects the wrong-doers. It’s also protections of federal employees from suit. While a lawsuit might expose the wrong-doing of the Bush Administration, it’s not going to land Dick Cheney in jail.

And, ultimately, it’s a concession of Congress’ own failures. When Chris Anders, ACLU’s legislative counsel, argued that indefinite detention would not pass Congress, Nadler pointed to the FISA Amendment Act as an example of how craven Congress can be. (Nadler was warning that we need to be very vigilent against any bill on indefinite detention.)

We definitely need to fix state secrets–and between the 9th Circuit Court of Appeals and Congress, I think that’ll happen (Nadler also predicted that Anthony Kennedy would vote with us if it ever got to SCOTUS). But if it’s going to be a means of accountability, we need to do more to make the individuals who implemented these policies personally responsible.

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12 replies
  1. WilliamOckham says:

    The bill looks pretty good, but I’m worried about this part:

    (e) Security Clearances- If the court orders a party or counsel to obtain a security clearance, the Government shall promptly conduct the necessary review and determine whether or not to provide the clearance. If the necessary clearance is not promptly provided to counsel for a party, the party may propose that alternate or additional counsel be cleared. If within a reasonable time, alternative or additional counsel selected by the party cannot be cleared, then the court, in consultation with that party and that party’s counsel, shall appoint another attorney, who can obtain the necessary clearance promptly, to represent the party in proceedings under this Act. When a security clearance for counsel sought under this Act is denied, the court may require the Government to present an ex parte explanation of that denial.

    It would be nice to be able to assume that the government would act in good faith, but given our recent history, I don’t think we can make that assumption. I would prefer some wording that gave the Court more control over these decisions.

    • bobschacht says:

      Excellent point, WO! The “Government” cannot be allowed sole discretion over whether to grant security clearance. If it wants to withhold granting such clearances, it should be made to show cause why the party in question is a risk, and the *court,* not the government, should decide.

      Bob in HI

    • emptywheel says:

      I very nearly said that on the panel yesterday (though I was thinking 535, cause we could use a few more guys like him in the Senate, too).

      • freepatriot says:

        I very nearly said that on the panel yesterday (though I was thinking 535, cause we could use a few more guys like him in the Senate, too)

        I wish you would

        it is long past time we raised a HOWL against the cowards in Congress

        some of y’all enjoy representation from admirable people

        I got a cowardly shit for a congresscritter

        he don’t even have the balls to embrace the bluedogs that he parrots

        Congress needs to lead, they ain’t paid to follow, or they need to get the fuck out of the way

        we’re upholding our Constitution

        if that’s an inconvenience for our congresscritters, they should be dealt with appropriately

        I believe a part of title 18 of the US Code deals with malfeasance

        let’s put in action

  3. Sid58 says:

    I recall that warrantless wiretapping needed reauthorization every 45 days (that visit to Ashcroft’s hospital bed dust-up). Is it being reauthorized; if so, by whom?

  4. freepatriot says:

    we need to do more to make the individuals who implemented these policies personally responsible.

    prosecute them

    the Constitution offers no protection for acts outside the law

    if it ain’t legal, then the government’s protective powers are not applicable

    the law is very clear.

    illegal contracts are not enforcable

    illegal acts are not a part of any official government duties

    detain em, try em, an punish them

    we could start by enforcing the law that makes it a crime to use classification or national securith to commit a crime or prevent political embarrasment

    using the national security laws for either of those purposes is a crime

    classifying information, or declassifying information, for criminal purposes or other personal considerations, is a violation of the US Code

    plain an simple

    do I gotta look up chapter an verse ???

  5. behindthefall says:

    O/T: NYT’s price jumped to $2 today. This follows some kind of pnint-media retreat? See if other papers also raise their prices now. Would that be price-fixing?

  6. klynn says:

    In a dialogue with Mary and bmaz on Reynolds as case law on SS Privilege yesterday, I mentioned that it stinks that the files in Reynolds were eventually declassified and showed the Government lied and that it stinks even more, after history revealed “that lie” that Reynolds can still stand as case law on SS Privilege.

    Then Mary wrote:

    The case as a case stands for what it stands for, so a District Court in particular would have a hard time saying that its holdings can be ignored. But this is why facts are so important (the issue I kept raising with the OLC opinions prior to the releases of the Bybee Torture II and the Bradbury memos – reliance opinions have to have facts) to case law. Certainly, what the facts have demonstrated is that the Executive branch lied to the Judicial branch. The highest level of gov officers swore out false affidavits, they bore false witness. So I do think that the court might be justified, based on the factual components that have since been revealed, in asking for more from the Exec.

    In particular, though, I’d love sit through some oral argument on State’s secrets were DOJ gets asked about Reynold’s – do you still stand by it as a state secret? If so, why? If that is your version of a “state secret” at DOJ, is that reasonable and if you are not reasonable should you receive any deference at all? If you concede now that it was not a state secret and that the Executive branch lied to the Judicial branch – how many bites of that apple should the Exec get?

  7. alank says:

    It seems to me that at some point — at the end of the day — one runs up against the government’s assertion of sovereign immunity — that the state (or sovereign) can do no wrong — upheld in courts with two narrowly defined exceptions. Generally speaking, by this mechanism adopted from English law the government reserves the right to decide when it will be prosecuted as result of some egregious act carried out by one of its agents in conflict with the boundaries set out by the Constitution. It’s very open-ended, it seems.

  8. Veritas78 says:

    A simple solution would be to put a price on the government’s decision to invoke state secrets: an immediate default judgement for the plaintiff. “Okay, you can decline to offer a defense, but then the plaintiff wins.” Then the government would have to decide whether keeping something secret was worth it.

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