Monisha Bansal | Staff Writer | Wednesday, January 30, 2008
Sens. Edward Kennedy (D-Mass.) and Arlen Specter (R-Penn.) introduced legislation that would allow an independent judge to review the government's claims that information cannot be released in an effort to protect national security. Rep. Jerrold Nadler (D-N.Y.) said he would introduce similar legislation in the House soon.
The Reynolds case set the precedent for the privilege. In 1953, the widows of three employees of the Radio Corporation of America (then an Air Force contractor) on a B-29 bomber that had crashed in 1948 sought accident reports on the crash. But they were told that to release such details would threaten national security by revealing the bomber's top-secret mission.
The Reynolds decision stated: "Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission."
In 2000, however, the accident reports were declassified and released and were found to contain no secret information. They did, however, contain information about the poor state of condition of the aircraft itself.
Nadler, chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, said during a hearing on the subject on Tuesday that the case shows that the government's assertions "cannot be taken at face value."
"Government has always needed to keep certain sensitive information secret," he acknowledged during the hearing. "The challenge for a free society has always been to balance the need to keep secrets with the openness necessary for a democracy to function. It has never been easy to strike this balance."
But Nadler added that "in too many cases claims of state secrets have succeeded in keeping important cases out of court entirely, or have prevented courts from considering evidence vital to the outcome of a case."
He noted that the Bush administration has raised the state secrets privilege in more than 25 percent more cases than previous administrations, adding that it was previously used to shield information, but the privilege is increasingly used to dismiss cases.
But Rep. Trent Franks (R-Ariz.), ranking member of the subcommittee, refuted Nadler's numbers, saying that they were not out of step with other administrations.
He added that the privilege is an "irreplaceable tool in the war against jihadist terrorism."
"I want to protect the American people as much as anyone in Congress," countered Rep. John Conyers (D-Mich.).
But, he added, "if not properly policed, the privilege might be misused to conceal, not just embarrassing information, but downright illegal activity, maybe impeachable conduct and public disclosure may not pose any genuine threat to national security."
Conyers said that since 9/11 the state secrets privilege has been used "for some of the most challenging aspects of the war on terror," including rendition, torture and warrant-less wiretapping.
Patrick Philbin, former associate deputy attorney general for the Department of Justice, however, testified that "the state secrets privilege serves a vital function in ensuring that private litigants cannot force the disclosure of information bearing on the foreign affairs or national security of the United States."
"Particularly at a time when the nation is still engaged in a conflict with al Qaeda in which intelligence is critical for our success, the state secrets privilege is a necessary mechanism for the Executive Branch to protect national security," he said.
"The United States remains locked in a years-long struggle with al Qaeda - an enemy that operates by secrecy and stealth and whose primary objective is to unleash surprise attacks on the civilian population of the United States," Philbin added.
"In combating this shadowy enemy, superior intelligence is essential for the nation's success," Philbin said. "Yet currently pending litigation would, without the interposition of the state secrets privilege, force the disclosure of innumerable details concerning the sources and methods of foreign intelligence operations."
He noted that the Reynolds decision states: "Even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake," making the privilege absolute.
Philbin questioned whether the legislation would take into account this absolute privilege, or whether it would be less deferential toward the executive branch.
"No congressional statute under [any] circumstances could permanently block the president's exercise of the executive authority in matters of national security," Conyers assured him, adding that in the 50 years since the Reynolds decision, numerous laws have been enacted that require the courts to review national security materials, including the Classified Information Procedures Act, the Freedom of Information Act, and the Foreign Intelligence Surveillance Act.
Make media inquiries or request an interview about this article.
E-mail a comment or news tip to Monisha Bansal