Recent overuse of the state secrets privilege has left some plaintiffs without any recourse whatsoever when their cases are shut down at the pleadings stage, and without any judge reviewing any of the evidence.
Latest Major Action: 8/1/2008 Placed on Senate Legislative Calendar under General Orders.
In prescribing rules for judicial review of the state
secrets privilege, the bill seeks to accomplish the following
general goals:
The bill provides a uniform set of procedures for
Federal courts faced with assertions of the state secrets
privilege, promoting clarity, predictability, and fairness in
judicial review of these claims.
The bill codifies many of the best practices that
are already available to courts but that often go unused, such
as in camera hearings, non-privileged substitutes, and special
masters.
The bill requires judges to look at the evidence
that the Government claim is privileged, rather than rely
solely on Government affidavits, so that the privilege is not
abused by the executive branch to cover up information that is
not actually sensitive.
The bill forbids judges from dismissing cases at
the pleadings stage on the basis of the privilege. This makes
clear that the state secrets privilege is an evidentiary rule,
not a justiciability rule, and can only be asserted with
respect to items of evidence that plaintiffs seek in discovery
or intend to disclose in litigation. At the same time, the bill
protects innocent defendants by allowing cases to be dismissed
when privileged evidence would be needed to establish a valid
defense.
The bill gives plaintiffs a chance to make a
preliminary case using evidence they have gathered on their
own.
The bill preserves the adversarial process--and
the truth-seeking function of that process--to the fullest
extent possible consistent with the protection of national
security.
The bill instructs courts to order the Government
to produce non-privileged substitutes for privileged evidence,
when this is possible, to allow cases to go forward safely.
The bill instructs courts to avoid excessively
deferential standards of review and to retain full control over
privilege determinations. This approach rejects a line of
judicial precedent that applies ``utmost deference'' to the
executive branch; the Government's assertions deserve weight
and respect, but they do not deserve a reprieve from the
rigorous, independent judicial scrutiny demanded by our
adjudicatory system.
The bill puts in place numerous security
procedures, including closed hearings, security clearance
requirements, and sealed orders, to ensure that secrets do not
leak out during litigation.
The bill sets reporting requirements to ensure
that Congress stays informed on use of the privilege and can
take corrective action if necessary.
The bill solves the crisis of legitimacy currently
surrounding the privilege, by setting clear rules that take
into account both constitutional and policy considerations.
Let's hope this bill does well. While introduced in January of 2008, a search here ATS for it turned up nothing for me. So I felt ok to post it in BAN because it appears as far as ATS is concerned this is breaking news. Please move it mods if you feel otherwise.
www.fas.org
(visit the link for the full news article)
with it I guess. 
