[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 730-733]
[From the U.S. Government Publishing Office, www.gpo.gov]


                      STATE SECRETS PROTECTION ACT

  Mr. KENNEDY. Mr. President, yesterday, Senator Specter and I 
introduced the State Secrets Protection Act. I have been working on 
this bill with Senator Specter for several months, and I thank him for 
his commitment and leadership on this very important issue. I hope that 
our collaboration on this legislation will demonstrate that even the 
most sensitive problems can be addressed through bipartisan cooperation 
if we keep the interests of the Nation front-and-center and roll up our 
sleeves to do the work of seeking a realistic and workable solution. 
The State Secrets Protection Act is an essential response to a pressing 
need.
  For years, there has been growing concern about the state secrets 
privilege. It is a common law privilege that lets the Government 
protect sensitive national security information from being disclosed as 
evidence in litigation. The problem is that sometimes plaintiffs may 
need that information to show that their rights were violated. If the 
privilege is not applied carefully, the Government can use it as a tool 
for cover up by withholding evidence that is not actually sensitive. 
The state secrets privilege is important, but there is a risk it will 
be overused and abused.
  The privilege was first recognized by the Supreme Court in 1953, and 
it has been asserted since then by every administration, Republican and 
Democratic. Under the Bush administration, however, use of the state 
secrets privilege has dramatically increased and the harmful 
consequences of its irregular application by courts have become 
painfully clear.
  Injured plaintiffs have been denied justice, courts have failed to 
address fundamental questions of constitutional rights and separation 
of powers, and confusion pervades this area of law. The Senate debate 
on reforming the Foreign Intelligence Surveillance Act has become far 
more difficult than it ought to be because many believe that if courts 
hear lawsuits against telecommunications companies, the courts will be 
unable to deal fairly and effectively with the Government's invocation 
of the privilege.
  Studies show that the Bush administration has raised the privilege in 
over 25 percent more cases per year than previous administrations and 
has sought dismissal in over 90 percent more cases. As one scholar 
recently noted, this administration has used the privilege to ``seek 
blanket dismissal of every case challenging the constitutionality of 
specific, ongoing government programs'' related to its war on 
terrorism, and as a result, the privilege is impairing the ability of 
Congress and the judiciary to perform their constitutional duty to 
check executive power.
  Another leading scholar recently found that ``in practical terms, the

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state secrets privilege never fails.'' Like other commentators, he 
concluded that ``the state secrets privilege is the most powerful 
secrecy privilege available to the president,'' and ``the people of the 
United States have suffered needlessly because the law is now a servant 
to executive claims of national security.''
  In 1980, Congress enacted the Classified Information Procedures Act--
known as CIPA--to provide Federal courts with clear statutory guidance 
on handling secret evidence in criminal cases. For almost 30 years, 
courts have effectively applied that law to make criminal trials fairer 
and safer. During that period, Congress has also regulated judicial 
review of national security materials under the Foreign Intelligence 
Surveillance Act and the Freedom of Information Act. Because of these 
laws, Federal judges regularly review and handle highly classified 
evidence in many types of cases.
  Yet, in civil cases, litigants have been left behind. Congress has 
failed to provide clear rules or standards for determining whether 
evidence is protected by the state secrets privilege. We have failed to 
develop procedures that will protect injured parties and also prevent 
the disclosure of sensitive information. Because use of the state 
secrets privilege has escalated in recent years, there is an increasing 
need for the judiciary and the executive to have clear, fair, and safe 
rules.
  Many have recognized the need for congressional guidance on this 
issue. The American Bar Association recently issued a report ``urg[ing] 
Congress to enact legislation governing Federal civil cases implicating 
the state secrets privilege.'' The bipartisan Constitution Project 
found that ``legislative action [on the privilege] is essential to 
restore and strengthen the basic rights and liberties provided by our 
constitutional system of government.'' Leading constitutional scholars 
sent a letter to Congress emphasizing that there ``is a need for new 
rules designed to protect the system of checks and balances, individual 
rights, national security, fairness in the courtroom, and the adversary 
process.''
  The State Secrets Protection Act we are introducing responds to this 
need by creating a civil version of CIPA. The act provides guidance to 
the Federal courts in handling assertions of the privilege in civil 
cases, and it restores checks and balances to this crucial area of law 
by placing constraints on the application of state secrets doctrine. 
The act will strengthen our national security by requiring judges to 
protect all state secrets from disclosure, and it will strengthen the 
rule of law by preventing misuse of the privilege and enabling more 
litigants to achieve justice in court.
  Recognizing that state secrets must be protected, the Act enables the 
executive branch to avoid publicly revealing evidence if doing so might 
disclose a state secret. If a court finds that an item of evidence 
contains a state secret, or cannot be effectively separated from other 
evidence that contains a state secret, then the evidence is privileged 
and may not be released for any reason. Secure judicial proceedings and 
other safeguards that have proven effective under CIPA and the Freedom 
of Information Act will ensure that the litigation does not reveal 
sensitive information.
  At the same time, the State Secrets Protection Act will prevent the 
executive branch from using the privilege to deny parties their day in 
court or shield illegal activity that is not actually sensitive. A 
recently declassified report shows that the executive branch abused the 
state secrets privilege in the very Supreme Court case, United States 
v. Reynolds (1953), that serves as the basis for the privilege today. 
In Reynolds, an accident report was kept out of court due to the 
government's claim that it would disclose state secrets. The court 
never even looked at the report. Now that the report has been made 
public, we've learned that in fact it contained no state secrets 
whatever but it did contain embarrassing information revealing 
government negligence.
  In recent years, Federal courts have applied the Reynolds precedent 
to dismiss numerous cases--on issues ranging from torture, to 
extraordinary rendition, to warrantless wiretapping--without ever 
reviewing the evidence. Some courts have even upheld the executive's 
claims of state secrets when the purported secrets were publicly 
available, as in the case of El-Masri v. Tenet. In that case, there was 
extensive evidence in the public record that the plaintiff was 
kidnapped and tortured by the CIA on the basis of mistaken identity, 
but the court simply accepted at face value the Government's claim that 
litigation would require disclosure of state secrets. The court 
dismissed Mr. El-Masri's case without even evaluating the evidence or 
considering whether the case could be litigated on other evidence.
  When Federal courts accept the executive branch's state secrets 
claims as absolute, our system of checks and balances breaks down. By 
refusing to consider key pieces of evidence, or by dismissing lawsuits 
outright without considering any evidence at all, courts give the 
executive branch the ability to violate American laws and 
constitutional rights without any accountability or oversight, and 
innocent victims are left unable to obtain justice. The kind of abuse 
that occurred in Reynolds will no longer be possible under the State 
Secrets Protection Act.
  The act requires courts to examine the evidence for which the 
privilege is claimed, in order to determine whether the executive 
branch has validly invoked the privilege. The court must look at the 
actual evidence, not just Government affidavits about the evidence, and 
make its own assessment of whether information is covered by the 
privilege. Only after a court has considered the evidence and found 
that it provides a valid legal defense can it dismiss a claim on state 
secrets grounds.
  The act also gives parties an opportunity to make a preliminary case 
with their own evidence, and it allows courts to develop solutions to 
let lawsuits proceed, such as by directing the Government to produce 
unclassified substitutes for secret evidence. Many of these powers are 
already available to courts, but they often go unused. In addition, the 
act draws on CIPA to include provisions for congressional reporting 
that will ensure an additional layer of oversight.
  I am pleased that the senior Senator from Pennsylvania and I have 
been able to work together to produce this bill. We expect to have a 
hearing soon on the state secrets privilege in the Judiciary Committee 
under the leadership of Chairman Leahy, who is a cosponsor of the bill 
and a strong supporter of state secrets reform. I look forward to a 
full airing of the issues and the important feedback that will come 
from the committee's thoughtful consideration of the legislation.
  In particular, as the bill moves forward, we intend to continue to 
explore the possibilities for providing relief to plaintiffs who have a 
winning case but cannot get a trial because every piece of evidence 
they need is privileged. This is an extremely difficult subject, which 
Congress should address if we can find a fair way to do so that will 
also protect legitimate secrets. We will also explore other measures to 
make the bill stronger, such as providing expedited security clearance 
reviews for attorneys.
  Under the State Secrets Protection Act, the Nation will be able to 
preserve its commitment to individual rights and the rule of law, 
without compromising its national defense or foreign policy. Congress 
has clear constitutional authority to regulate the rules of procedure 
and evidence for the Federal courts, and it is long past time for us to 
exercise this authority on such an important issue. I urge my 
colleagues in the Senate to pass this needed legislation as soon as 
possible.
  Mr. SPECTER. Mr. President, I wish to discuss the State Secrets 
Protection Act of 2008. Senator Kennedy and I are introducing this 
bipartisan bill in order to harmonize the law applicable in cases 
involving the executive branch's invocation of the privilege. This bill 
is timely for several reasons. First, the use of the privilege appears 
to be on the rise in the post-September 11, 2001,

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era, which has generated new public attention and concern about its 
legitimacy. Second, there is some disparity among the district and 
appellate court opinions analyzing the privilege, particularly as to 
the question of whether courts must independently review the allegedly 
privileged evidence. Finally, a codified test for evaluating state 
secrets that requires courts to review the evidence in camera--a Latin 
phrase meaning ``in the judge's private chambers''--will help to 
reassure the public that the claims are neither spurious nor intended 
to cover up alleged Government misconduct. With greater checks and 
balances and greater accountability, there is a commensurate increase 
in public confidence in our institutions of Government.
  In view of its increasing use, inconsistent application, and public 
criticism, we think the time is ripe to pass legislation codifying 
standards on the state secrets privilege. Our bill builds upon 
proposals by the American Bar Association and legal scholars who have 
called upon Congress to legislate in this area.
  Mr. President, I begin my remarks by discussing some of the 
historical and more recent applications of the state secrets doctrine--
which have run the gamut from cases involving military aviation 
technology to CIA sources and methods, to extraordinary rendition and 
the terrorist surveillance program, or TSP.
  In the 1876 case Totten v. United States, 92 U.S. 105, 1876, the 
Supreme Court acknowledged a privilege that barred claims between the 
Government and its covert agents ``in all secret employments of the 
government in time of war, or upon matters affecting our foreign 
relations, where a disclosure of the service might compromise or 
embarrass our government in its public duties, or endanger the person 
or injure the character of the agent.'' The Totten case involved a 
purported Civil War spy who sought to sue President Lincoln to enforce 
an alleged espionage agreement. In 2005, the Court reaffirmed the 
holding in Totten that ``lawsuits premised on alleged espionage 
agreements are altogether forbidden.'' Tenet v. Doe, 544 U.S. 1, 2005.
  Notwithstanding Totten, the modern state secrets privilege was first 
recognized by the Supreme Court in the 1953 case of United States v. 
Reynolds, 345 U.S. 1, 1953. Reynolds involved the Government's 
assertion of the military secrets privilege for an accident report 
discussing the crash of a B-29 bomber, which killed three civilian 
engineers along with six military personnel. In Reynolds, the Supreme 
Court set out several rules pertinent to the assertion and 
consideration of the state secrets privilege. For example, the Court 
said the privilege belongs to the Government. It can be neither claimed 
nor waived by a third party. The Court also held that the privilege 
must be asserted ``in a formal claim of privilege lodged by the head of 
the department which has control over the matter, after actual 
consideration by that officer.'' Further, ``the showing of necessity 
which is made will determine how far the court should probe in 
satisfying itself that the occasion for invoking the privilege is 
appropriate.'' Significantly, however, the Supreme Court held that the 
material in question need not necessarily be disclosed to the reviewing 
judge. On this point, the Reynolds Court said:

       Judicial control over the evidence in a case cannot be 
     abdicated to the caprice of executive officers. Yet we will 
     not go so far as to say that the court may automatically 
     require a complete disclosure to the judge before the claim 
     of privilege will be accepted in any case. It may be possible 
     to satisfy the court, from all the circumstances of the case, 
     that there is a reasonable danger that compulsion of the 
     evidence will expose military matters which, in the interest 
     of national security, should not be divulged. When this is 
     the case, the occasion for the privilege is appropriate, and 
     the court should not jeopardize the security which the 
     privilege is meant to protect by insisting upon an 
     examination of the evidence, even by the judge alone, in 
     chambers.

  Unfortunately, this limitation on judicial review ultimately led to 
further litigation and public skepticism when the accident report from 
the Reynolds case was later declassified--a result the State Secrets 
Protection Act seeks to avoid in future cases.
  In 2003, after the documents at issue in Reynolds were declassified, 
one of the original plaintiffs and heirs of the others brought suit 
alleging that the Government had committed a ``fraud upon the court.'' 
I cite Herring v. United States, 424 F.3d 384 (3d Cir. 2005), cert. 
denied by Herring v. United States, 547 U.S. 1123, May 1, 2006. They 
claimed the Government had asserted the military secrets privilege for 
documents that did not reveal anything sensitive simply to conceal the 
Government's own negligence. Nevertheless, both the district court and 
the Third Circuit declined to reopen the case after finding that the 
plaintiffs could not meet the high burden for proving a claim of fraud 
on the court. The Third Circuit wrote:

       We further conclude that a determination of fraud on the 
     court may be justified only by ``the most egregious 
     misconduct directed to the court itself,'' and that it ``must 
     be supported by clear, unequivocal and convincing evidence.'' 
     The claim of privilege by the United States Air Force in this 
     case can reasonably be interpreted to include within its 
     scope information about the workings of the B-29, and 
     therefore does not meet the demanding standard for fraud upon 
     the court.

  I cite Herring, 386-387. This ruling, however, did not end public 
debate on the matter. As recently as last October, the New York Times 
editorialized: ``[T]he Reynolds case itself is an object lesson in why 
courts need to apply a healthy degree of skepticism to state secrets 
claims. . . . When the documents finally became public just a few years 
ago, it became clear that the government had lied. The papers contained 
information embarrassing to the government but nothing to warrant top 
secret treatment or denying American citizens honest adjudication of 
their lawsuit.''
  Upon learning of the Herring case, which was filed in Philadelphia, 
it became clear to me that codifying provisions for a court to use in 
ruling on state secrets cases was desirable for a number of reasons--
including the added legitimacy of having a judge evaluate the validity 
of the claim. I think that by requiring in camera court review, we will 
ultimately provide parties with greater trust in the integrity of the 
claim and, importantly, appropriate closure.
  The benefits of court review are illustrated by recent events in the 
Ninth Circuit. On November 16, 2007, the Ninth Circuit decided Al-
Haramain Islamic Foundation, Inc. v. Bush, 507 F.3d 1190 (9th Cir. 
(Ca.) 2007), a case in which the plaintiffs challenged alleged 
surveillance of their organization under the terrorist surveillance 
program, TSP. The case stands out in TSP jurisprudence because the 
plaintiff alleged the Government had unwittingly provided proof that it 
was surveilling the plaintiff by inadvertently disclosing a partial 
transcript of phone conversations. The district court denied the 
Government's motion to dismiss on grounds of the state secrets 
privilege, but the Ninth Circuit reversed. Citing Totten and Reynolds, 
the Al-Haramain court acknowledged that when the very subject matter of 
the lawsuit is a state secret, dismissal without evaluating the claim 
might be appropriate. However, given all of the public disclosures 
concerning the TSP, the Al-Haramain court held that the subject matter 
of the lawsuit was not itself a state secret. Instead, the court 
concluded that it ``must make an independent determination whether the 
information is privileged.'' This is 507 F.3d at 1202. It did so by 
undertaking a full review of the privileged documents in camera. The 
Al-Haramain court described its review of the sealed document at issue 
and the balancing test it imposed:

       Having reviewed it in camera, we conclude that the Sealed 
     Document is protected by the state secrets privilege, along 
     with the information as to whether the government surveilled 
     Al-Haramain. We take very seriously our obligation to review 
     the documents with a very careful, indeed a skeptical, eye, 
     and not to accept at face value the government's claim or 
     justification of privilege. Simply saying ``military 
     secret,'' ``national security'' or ``terrorist threat'' or 
     invoking an ethereal fear that disclosure will threaten our 
     nation is insufficient to support the privilege. Sufficient 
     detail must be--and has been--provided for us to make a 
     meaningful examination. The process of in camera review 
     ineluctably places the court in a role

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     that runs contrary to our fundamental principle of a 
     transparent judicial system. It also places on the court a 
     special burden to assure itself that an appropriate balance 
     is struck between protecting national security matters and 
     preserving an open court system. That said, we acknowledge 
     the need to defer to the Executive on matters of foreign 
     policy and national security and surely cannot legitimately 
     find ourselves second guessing the Executive in this arena.

  I cite 507 F.3d at 1203
  The State Secrets Protection Act essentially codifies the Al-Haramain 
test by requiring courts to evaluate the assertion of a state secrets 
privilege in light of an in camera review of the allegedly privileged 
documents. I think it is highly advisable to codify both the means of 
asserting the privilege and the method for reviewing courts to go about 
resolving claims of privilege because the state secrets privilege is 
being asserted more frequently and the resulting decisions will benefit 
from more consistent procedures. Indeed, one recent study indicates 
that, of the approximately 89 state secrets cases adjudicated since the 
Supreme Court's decision in Reynolds, courts have declined to review 
any evidence in at least 16 cases. It is unclear whether the courts 
reviewed any evidence in another 16 cases, so the number could be as 
high as 32, or more than a third of the total. The current bill would 
end this practice.
  Reliable statistics on the use of the state secrets privilege are 
somewhat difficult to come by because not all cases are reported. The 
Reporters' Committee for Freedom of the Press claims that, ``while the 
government asserted the privilege approximately 55 times in total 
between 1954 . . . and 2001, [the government] asserted it 23 times in 
the four years after Sept. 11.'' With the use of the privilege 
apparently on the rise, the risk of abuse also grows. As I have noted, 
critics argue that the Government has abused the privilege to cover up 
cases of malfeasance and illegal activity. They point to the aftermath 
of Reynolds and more recently to the case of Khaled El-Masri, whose 
claim that the was subject to extraordinary rendition was dismissed 
following the Government's successful assertion of the state secrets 
privilege at the district and appellate court levels. This is El-Masri 
v. United States, 479 F.3d 296 (4th Cir. (Va.) March 2, 2007), cert. 
denied, 128 S.Ct. 373 (October 9, 2007). Although the Supreme Court 
declined to revisit the state secrets doctrine in the El-Masri case, 
there is ample cause for congressional action--both to protect 
legitimate secrets and ensure public confidence in the process for 
adjudicating such privilege claims.
  The State Secrets Protection Act establishes a clear standard for 
application of the state secrets privilege and creates procedures for 
reviewing courts to follow in evaluating privilege claims. 
Specifically, the Kennedy-Specter State Secrets Protection Act:
  Defines state secrets and codifies the standard for evaluating 
privilege claims: The bill defines ``state secret'' as ``any 
information that, if disclosed publicly, would be reasonably likely to 
cause significant harm to the national defense or foreign relations of 
the United States.'' It requires Federal courts to decide cases after 
``consideration of the interests of justice and national security.''
  Requires court examination of evidence subject to privilege claims: 
The legislation requires courts to evaluate the privilege by reviewing 
pertinent evidence in camera. By statutorily empowering courts to 
review the evidence, the bill will substantially mitigate the risk of 
future allegations that the Government committed ``fraud upon the 
court,'' as asserted by the Reynolds plaintiffs 50 years after the 
landmark decision.
  Closes hearings on the privilege--except those involving mere legal 
questions: Under the legislation, hearings are presumptively held in 
camera but only ex parte if the court so orders.
  Requires attorney security clearances: Under the bill, courts must 
limit participation in hearings to evaluate state secrets to attorneys 
with appropriate clearances. Moreover, it allows for appointment of 
guardians ad litem with clearances to represent parties who are absent 
from proceedings.
  Permits the Government to produce a nonprivileged substitute: 
Consistent with the Classified Information Procedures Act, the bill 
allows for the use of nonprivileged substitutes, where possible. If the 
court orders the Government to provide a nonprivileged substitute and 
the Government declines to provide it, the court resolves fact 
questions involving the evidence at issue against the Government.
  Protects evidence: The proposed bill incorporates the security 
procedures established in the Classified Information Procedures Act and 
permits the Chief Justice to create additional rules to safeguard state 
secrets evidence.
  I commend the bill to all of my Senate colleagues.

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