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The State Secrets Protection Act requires courts to
consider evidence for which the privilege is claimed, in order
to determine whether the executive branch has validly invoked
the privilege. It gives parties an opportunity to make a
preliminary case with their own evidence before a lawsuit is
dismissed, and it allows courts to develop solutions to let
lawsuits proceed, such as directing the Government to produce
non-privileged substitutes for secret evidence.
In prescribing rules for judicial review of the state
secrets privilege, the bill seeks to accomplish the following
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
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
The bill gives plaintiffs a chance to make a
preliminary case using evidence they have gathered on their
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
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
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.
Originally posted by Amaterasu
I care. And I will be contacting my reps to tell them I want this supported.
Sorry I didn't respond sooner - I must have missed it during one of my frequent AFK (Away From Keyboard) moments.
I hope more will take notice!
A. INTRODUCTION OF THE BILL
Senators Kennedy, Specter and Leahy introduced S. 2533, the State Secrets Protection Act, on January 22, 2007. The bill was referred to the Committee on the Judiciary. Since the bill's introduction and prior to its Committee consideration, Senators Feingold, Whitehouse, Webb, Clinton, Dodd, McCaskill, Schumer, and Biden joined as cosponsors.