The State Secret Protection Act
This will get dragged into court right away, even assuming Congressmen Conyers, Nadler, Delahunt, Petri and Congresswoman Lofgren can get it passed. Still, with Obama’s inexcusable support for Bush’s state secrets invocation the other day, there’s no time like the present to really push this bill, which would establish a CIPA-like process to allow the admission of evidence over which the executive has invoked State Secrets. (via email)
Congressmembers Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Thomas Petri (WI-6), House Judiciary Chairman John Conyers, Jr. (MI-14), Bill Delahunt (MA-10) and Zoe Lofgren (CA-16) today reintroduced legislation that would ensure meaningful judicial determination of the state secrets privilege. The bi-partisan State Secret Protection Act of 2009 would curb abuse of the privilege while providing protection for valid state secrets.
"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler. "This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases. The right to have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy."
Rep. Petri commented, "Imagine the government locks you up but says you can’t see the evidence for reasons of national security. I’m sure there are cases where national security is truly at risk, and that information must be protected. But we shouldn’t have to simply take the executive branch’s word for it. Shouldn’t an independent, responsible party apart from the executive branch review the material to determine when and how national security really necessitates restricting the use of sensitive material? The answer is, quite obviously, yes. We have a procedure for criminal cases, and we need one for civil cases as well."
"National security and the search for justice are not mutually exclusive," said Rep. Zoe Lofgren. "By allowing a neutral arbiter to evaluate assertions of the state secret privilege with appropriate safeguards to protect national security information, the State Secret Protection Act strikes the appropriate balance between protecting our national security and protecting the rights of citizens."
The state secrets 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.
For example, in 1953, the widows of three civilian engineers filed a civil case against the government for negligence in a military airplane crash that killed their husbands. The government, citing national security concerns, refused to provide an accident report of the crash. The Supreme Court, in U.S. v. Reynolds, upheld that refusal, without ever reviewing the documents. When the report was discovered through an internet search fifty years later, it did not reveal any secret military information but, instead, showed the government’s negligence in the crash.
"Since the Reynolds decision, the courts have allowed the government to conceal or hide illegal activity by claiming a national security privilege with no oversight," said Rep. Delahunt. "This legislation ends the abuse of this privilege which was exemplified in this case, while protecting our national security."
And, in the past few years, the Bush administration’s use of the privilege to dismiss cases challenging the most troubling aspects of its war on terror – including rendition, torture and warrantless wiretapping – have highlighted the need to ensure that judges do not simply accept a government’s secrecy claim at face value. This past week, the Obama administration adopted the prior administration’s argument, in Mohamed v. Jeppesen Dataplan, Inc., that a case challenging rendition to torture should be dismissed outright without even allowing the parties to conduct non-privileged discovery. This underlines the continued need for clear guidance on proper court handling of state secret claims.
The bipartisan State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence. Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if "public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States."
Under the bill, when this standard is met, a judge must protect the evidence from harmful disclosure, and shall consider whether a non-privileged substitute can be created that would prevent an unnecessary dismissal of the claims. The sponsors noted that through reasonable and uniform procedures and standards, their bill would strengthen national security and the rule of law, and would help restore checks and balances. [my emphasis]
That’s great news. Do you think Obama would sign this bill if it were to pass? After all, he presumably was in on the decision to support the Bush position in Jeppesen.
I dunno, I increasingly believe that Greg Craig is pushing him further right on executive power issues (which is not to say he wouldn’t be there on his own).
Either way, this isn’t the sort of thing that ought to be left up to the Executive branch to decide. It’s high time Congress stepped in to assert their role in checking abuses of the Executive. I applaud their efforts. Even if Obama threatens a veto, I should think with a Democratic President, the Rethugs would get on board with this legislation, but who knows?
IANAL–How is it that the assertion of ’state secret’ has become unreviewable by the court? My understanding of the Enlightenment, of which the American Enlightenment is a belated part, is that one of its lines of thought was that state power needed to made transparent and shared.
Things are not settled yet in San Francisco, though, are they? I am NAL either, but I’ve been hoping that the appeal-court panel might find some way to talk back to that young man from the DoJ who conveyed the depressing message on Monday.
the continuation of this policy by obama’s team .. is as big a disappointment as was obmam’s cave-in on telecom immunity and FISA ..
I guess when Bush made the comment that there would be a moment that Obama would realize what he’d gotten himself into…he meant it. Obama is being “handled” by the powers that be…whoever they are…
This bill must pass if America is ever to free itself from the evil entanglements that Bush/Cheney’s Secret Government got us into. We must not tolerate more of the same.
I, too, was deeply disappointed by Obama’s cave-in on FISA, but more grieved by this upholding/furthering Bush’s state secret shield of criminal acts. It’s clear that there’s no national security involved…just cover-up. Obama swore to uphold the law; this is his failure number one. (IMHO).
So does this mean another FISA like clearing house for State secrets where the Defense isn’t allowed to view the government reasons for withholding evidence or critic the validity of the rulings? How is FOIA handled in the bill for past vast hiding of wrong doing via State Secrets and does the bill include retroactive judicial handling?
I haven’t read the proposed act and so shouldn’t comment, but I will anyway. If it does read in the nature of a prohibition along these lines: “…would allow evidence to be withheld only if “public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States.” I do not think it is going to be helpful
In most of the egregious actions by Gov to date, I think over and over you would have to agree that diplomatic relations or national defense could be significantly harmed. I don’t think you engage in criminal assaults against people and torture, or persuade third party countries to engage in torture as your proxy, or have third party countries host your torture sites, or work with third party countries or domestic providers of services to engage in massive illegal surveillance, etc. without those activities haveing adverse effects if disclosed.
So that standard won’t be very helpful IMO to judges or plaintiffs. Did, for example, the release of the Abu Ghraib pictures have adverve national security consequences (i.e., become a recruitment tool)? Sure, when you do bad things, if they are disclosed they tend to generate negative reactions.
IMO, the kind of approach they propose has to have a prior level – one that pretty much tracks the EO on classification as to things that should not be classified and specify that those are things that, to the extent the court reasonably believes they are at issue (attempts to cover up crime or to cover up embarassing activities of Gov) they would not be subject to protection, even if there might be some possiblility of a consequential negative impact on diplomatic relations or national security. (For example, under our CAT obligations, we have a duty to go after state sponsors of torture directly bc of the state sponsorship issue – which seemingly would de facto result in adversely affecting diplomatic relations with the nations we accuse of using color of law for torture – and so you get into a very circular situation if you say significant harm to diplomatic or national security relationships justify cover up of any kind of activity, well, most govt crimes whether committed directly or in conjunction with other foreign nationals acting under state sponsorship will have adverse nat security and diplomatic fallout upon revelation, kind of by definiation)
So I think the national security aspects are relevant and necessary but only after an initial consideration of criminal acts. So, for example, having the Act track this kind of language from the EOs that have evolved on classification
would make sense to me:
(1) conceal violations of law, inefficiency, or administrative error;
(2) prevent embarrassment to a person, organization, or agency;
(3) restrain competition; or
(4) prevent or delay the release of information that does not require protection in the interest of the national security.
(b) Basic scientific research information not clearly related to the national security shall not be classified.
(c) Information may be reclassified after declassification and release to the public under proper authority only in accordance with the following conditions:
(1) the reclassification action is taken under the personal authority of the agency head or deputy agency head, who determines in writing that the reclassification of the information is necessary in the interest of the national security;
(2) the information may be reasonably recovered; and
(3) the reclassification action is reported promptly to the Director of the Information Security Oversight Office.
(d) Information that has not previously been disclosed to the public under proper authority may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of section 3.5 of this order only if such classification meets the requirements of this order and is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.4 of this order.
(e) Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information. As used in this order, “compilation” means an aggregation of pre-existing unclassified items of information.
Change the “In no case shall infomration be classified in order to….” to
In no case shall the states secret privilege be invoked or allowed to the extent that it will …” or start with something along those lines and I think you not only get to a better place, it is a more defensible place in accordance with making the Exec branch subject to law rather than always being able to whine on adverse nat sec or diplomatic effects and it is more in line with our international treaty obligations which do require pursuit of things like torture crimes even if countries get embarassed or people have negative feelings toward the torturers that impacts on nat sec.
This is also pretty much in accord with what Presidents, after Nixon, have been willing to say publically and in writing about the limits on their ability to use Exec branch classification too – so it holds them to their own standards.
IYO “reasons of state” can never overcome governmental obligation to prosecute crime?
Do I have that never in there erroniously?
Well, my quote attempt didn’t work too well. Everything from the a) that got an indent to the end of the (e) paragraph (or the paragraph beginning with “Change the” should have been in quotes and is from the linked classification EO.
Support for this bill should be a no-brainer. But no one is praising the Democrats these days for their brains, or their morals. News leaks out about continuing abuse from Guantanamo and barely a peep of protest issues from our representatives in the hallowed halls of Congress.
Meanwhile, I encourage readers to go to UK Guardian and read Lieutenant-Colonel Yvonne Bradley’s essay there today, titled simply “Bring Binyam Home.” Bradley is a U.S. military attorney and is one of Mohamed’s lawyers working on his case in the UK.
Why is this essay not printed in any U.S. papers? (I see none carrying it, via a Google News search.) Why are members of Congress not calling for the release of Binyam Mohamed and others deemed innocent at Guantanamo? Bradley believes her client continues to be held in order to suppress evidence of his torture.
Pompous words about legal rights (NYT) and throwing around threats of eventual prosecution (Scott Horton) sound good, but the impotence of such protests ring hollow now, just as they did in the Bush years. Whether that will remain the case is open to question, as many are fond of pointing out that the Obama administration has barely cut its milk teeth.
But it would be wrong to fetishize the actions of the executive branch. The actions of the U.S. government are what we are talking about here. One only has to look at conditions in Guantanamo to wonder, as Andy Worthington does in an essay released today, “Who’s running Guantanamo?” Commenting on Bradley’s reports of abuse continuing at Guantanamo, he writes:
Re support for any state secrets protection bill, I will defer to Mary’s criticisms. What I should have said is that support for some kind of legislation that acts to limit the way the executive branch has invoked state secrets privilege for over eight years now, in order to cover criminal acts, is something we can definitely support, given it really achieves that goal.
See as well at the Guardian site Clive Stafford Smith’s claim that DoD officials redacted the entire memo appended to his letter to Obama, detailing evidence of Binyam Mohamed’s torture. (Stafford Smith is director of the legal charity representing Mohamed.)
The link to the letter and the redacted memo (pdf) is there.
The Guardian comments:
This is startling material, and corroborative of Andy Worthington’s question of late… who really is in charge of DoD? It also begs some further questions: is Obama even interested or demanding access to crucial material, information that would direct his decision-making process? Or is he, with all his power, unable to get the Pentagon to execute his orders? How far does the rebellion among layers of the military go (viz. the Pohl decision initially on al-Nashiri)?
Heh, I don’t know; Gates I guess. I’ll say this, the one hope I see, and it may be faint, is Jeh Johnson, and he wasn’t confirmed until late yesterday morning. Maybe there will be improvement. We can but hope…..
Gates, once Dir of CIA. It’s well known that once CIA, it’s for life – there’s no getting out. Binyam Mohammed’s capture, rendition, torture, imprisonment in GITMO was IMHO, a CIA black ops operation. So, connect the dots.
I can’t understand Obama keeping Gates on. Is Obama now captive of the Secret Government? ….JFK’s fate when he took on the CIA…
I hear from many sources that Johnson is a good man. But I think the situation is now beyond the resources of any one good individual. We will need many good men and women. I think there’s a house revolt going on. I wouldn’t call it a coup, but something is definitely very wrong.
Which house do you think is revolting? The U.S. House of Representatives, DoJ, other? I’m just not clear on the sense of your use of the word “house” above. Just curious…
“House” in the sense of “in-house”, somewhere within the various departments. Insubordination on a large enough scale it becomes a revolt, of sorts. We saw somewhat the same thing when portions of the bureaucracy revolted against some of the worst of what Bush was doing (someone in the Pentagon, for instance, was leaking to the press, to Jane Mayer, Katherine Eban, etc., about the ICRC reports, about torture, memos, etc.).
Appears the revolution will come from the JAGs, but that will get to Jeh Johnson I would think. Maybe that starts the movement in earnest.
JAGs, also Office of Inspector General… yes, there’s plenty inside the Defense Department on our side, so to speak, at least on this issue. They are an honorable bunch, but they don’t have the power yet. Still, they are valuable allies. They hate torture as much as you or I, maybe more, because they see how it is destroying the institutions they love.
Thanks for the clarification — just wanted to make you I understood you correctly. I appreciate your response!
Your comment launched me into action, and I’ve posted a “diary” at Daily Kos on the censored material, noting that it relates to other information that calls into question to what degree Obama is in control or being sabotaged at Dod.
Pentagon Hiding Torture Evidence from Obama
I have given you the appropriate H/T, and I thank you here, too, for keying me into this info.
Thank you for the h/t, Valtin. Like everyone else here, I think, I am grateful to you for the amazing work you do.
And everyone who speaks to this topic is a cherished friend of mine, right away. We are the momentum.
Good to see you here again, Valtin.
IMHO, Pres. Obama and/or Atty Gen’l Holder should intervene immediately in Binyam Mohamed’s case and fly him home to Britain.
If failure to do so is caused by fear that his torture will be undiniable, then those with power to release him should consider the consequenses in case he dies – more a probability than a possibility. Do those dumb-clucks think the problem will go away if he dies??
I agree, but such wishes may remain only that, fond wishes for justice, a fairy tale for wistful liberals, and those of us who fail to see the iron fist wrapped inside the velvet glove.
I’d like to see just once the head attached to that iron fist!
I don’t think Obama caved at all. I think he told us stuff that sounded like what we wanted to hear, and let us run with it in our own minds.
He’s going to have to be dragged kicking and screaming on this one.
A ‘pattern’ seems to be emerging, scribe.
Looks as if there will be need of a number of ‘draggings’, all accompanied by kicking and screaming and gnashing of teeth.
But then, many of us, though disappointed at the shear number of things which will require the dragging, cannot claim to be either unduly surprised or not up to the ‘task’.
‘Hearing’ is one thing, ’seeing’ another …
Henceforth, his words, regarding almost anything, will mean little until they are ‘tested’.
He may toy with our hopes, but not with our lives.
That sort of Bu$h-Bull is over. Finished and done with, regardless of what Obama, Sunstein, or any others among his ‘advisers’ may think or believe.
People are paying ever more attention, and realizing, clearly, that their future as well as that of their children is on the line.
Obama makes a serious miscalculation to imagine that only the economy matters to people.
The pundits may so proclaim, but my conversations with people (which I engage in daily), suggest that more and more do understand what has happened as well as what it may mean.
Yep. Quite frankly I always had my concerns in this regard about Obama. In fairness, Clinton likely no better other than that she didn’t try the head fake on the gullible like Obama did.
18 = there’s a difference between obligation to prosecute and invocation of state secrets to cover up governmental crime. The never is not erroneous as to cover up via state secrets invocatons of government directed crime. [Keep in mind the cases seeking the release of this info to date are all civil, so prosecution of crime isn’t on the table for them and would not be very often in an actual criminal prosecution, which would be proceeding from gov making the election to pursue]
The issue on obligations to prosecute crime – well, we have those obligations under the Torture Conventions that we signed – not necessarily vis a vis the illegal surveillance. And even where we have the obligation, as we do under the Torture Conventions, I won’t say there are never overweening considerations even in clear cases (something as simple as allocation of resources and exent of the crime, to the fact that there might be military concessions or other issues on the table or regional stability etc. that might impact on the exercise of prosecutorial discretion to actually charge and prosecute.
But on the issue of invoking state secrets to prevent the release of govt crimes, if you rephrase it that was, you have my position correctly stated. Gov cannot classify or insulate from production info on its own crimes.
Unrelated, but tangential –
Apparently Pakistan is still upset over the detention of Aafia Siddiqui. The Pakistan Senate has been making inquiries and the Pakistan Prime Minister has said that he will/has approached Holbrook over her return to Pakistan, as well as an accounting for her children.
Women Senators of Pakistan have addressed a letter to Obama seeking her return to Pakistan:
and Pakistan is also saying that she was videoed naked and that her interrogators included an Indian (that goes over well in Pakistan) who was a contemporary of hers at MIT
Plus the allegations are that at least one of her childrens is dead. Is any of it the truth? Who knows, but policies that are such that it could be the truth, coupled with a current administation that doesn’t really seem interested in getting the truth about “the past” out in the open, none of that helps.
Thanks. The only thing I’m fuzzy on is if the intent of non-disclosure is to prevent the uncovering of crimes committed by other governments of which we are aware but not witting participants.
14 – I think so too.
16 – that is an interestig link, thanks for sharing it.
So the High Court IS reopening the case, eh?
Have fun Mr. Miliband.
It’s odd they are sayign that DOD may be blanking out info to protect Obama from criminal liability. Why would he be the one criminally liable? Is there a worry that, to the extent that he is not planning on doing anything about it other than covering it up there might be obstruction or conspiracy/complicity issues? And why would it be a criminal issue for Obama to see it, but not for whoever is doing the DOD redacton to see it?
I can see where they might want him, politically, to be able to continue to claim (if he is asked) that he doesn’t know anything about the case, but it doesn’t seem to engender much “good faith” to be one day issuing thank you-s to Britain for keeping the torture secret, then claiming that you know nothing about the case later.
Now Miliband is saying that the Foreign Office has been granted a GITMO pass to go see Mohamed and to take a police doctor to accompany him back to Britain ‘if’ he is released. Hmmmm.
And in addition to the seven or so paragraphs, there are 42 documents.
If I’m reading multiple Guardian reports correctly, the 42 documents have to do with the involvement of MI5 in the interrogations. (MI6 already comes up in the High Court decision we had last week, I think.)
We know or suspect that our (ie: Canada’s) “security” services have been involved by proxy in some roughly similar cases, where, eg, someone asks the Pakistani ISI to pick up a suspect there and then one or more national security agencies transmit to the ISI questions to be put to the suspect.
This is going to take so much unraveling.
FYI – The Senate Has Now Joined The Fray. Just received in email from the ACLU:
This act by the Admin re state secrets in this case, and a future investigation/prosecution of Bush torture do not appear to be mutually exclusive. no? Just wondering along the lines that someone glancingly mentioned above – could it be possible that this Admin action today might actually serve to better organize an investigation/prosecution of torture in the future?
27 – under the Torture Conventions, we have an obligation to make the info available – even if there was any way we could claim being “unwitting” with a straight face.
29 – I just hope there’s some artful drafting in there somewhere, bc otherwise it is going to come out as Congress agreeing with the Exec branch that any kind of but-for national security or diplomatic relations situation (the butterfly wing flapping that causes the tsunami, evenutally) is insulating. Kind of tag teaming the judiciary with legislation to bolster the invocations instead of to limit them, whether that was the intent or not.
it seems to me obama has made some promises that will protect the previous administration
I am not liking him too much now a days, I am hoping he has something up his sleeve but it surely looks like that is not the case
I say prosecute obama as well if he allows these criminals to get away with their treason
34 – I think they all overlap, but yes, he’s saying that if Parliament had seen all 42 docs he’s seen that they would not be able to absolve MI5.
42 non-destroyed docs is pretty good though.
What was the quote again? “You want me to do it; I want to do it; now make me do it.” I think we may collectively be making the mistake that just because a given choice is the right one, we won’t have to work to make it happen any more, it’ll just happen on its own now just because Obama is better than Bush. I think it’s clear by now that we will have to keep doing that work, and in every single instance, and on every single issue. The work never ends.
But keep in mind that, along those lines, the pressure was applied on the FISA Amendments Act. We “made him”, to the extent a case can be made, and he blew us off so fast it was hard to even see. As Kanye West would say, “Barack Obama don’t care about progressive people”.
FISA still hurts like hell, and remember I was an early adopter of the meme “That man’s going to break all our hearts, over and over,” invoking the memory of Bill Clinton and “welfare reform”. But none of that is a reason not to work for things any more. Just like FISA was no reason not to vote for him. We must retain the bigger picture.
Previous generations have done at least as much.
It’s odd they are sayign that DOD may be blanking out info to protect Obama from criminal liability. Why would he be the one criminally liable?
This bit has stayed with me, too (well, the whole thing has, but nevermind). Does it mean that DoD thinks the acts are to continue, period, and therefore any informed President is liable, period? That an order to desist would vanish into the ether as if never uttered, never to be cited by a President needing to defend himself?