This is a discussion on Help Limit the "State Secrets" Privilege within the Off Topic & Humor Discussion forums, part of the The Back Porch category; ** CONFRONTING THE STATE SECRETS PRIVILEGE ** CHINA'S CURRENCY, AND MORE FROM CRS CONFRONTING THE STATE SECRETS PRIVILEGE At a House Judiciary Subcommittee hearing today, ...
** CONFRONTING THE STATE SECRETS PRIVILEGE
** CHINA'S CURRENCY, AND MORE FROM CRS
CONFRONTING THE STATE SECRETS PRIVILEGE
At a House Judiciary Subcommittee hearing today, witnesses discussed
the feasibility and advisability of legislating reforms to the state
The state secrets privilege has been used by the executive branch to
block discovery in civil litigation when the government believes that
there is an unacceptable risk of disclosure of sensitive national
security secrets. But on several occasions, the mere assertion of the
privilege has led to termination of the lawsuit. It has effectively
short-circuited the adjudication of claims against the government
involving domestic surveillance, unlawful detention, and torture.
"I do believe thoughtful legislation is needed to insure that maximum
and uniform efforts are made to strike the right balance between
national security needs and fair judicial proceedings," said the Hon.
Patricia M. Wald, the retired chief judge of the DC Circuit Court of
Appeals in testimony today.
Legislative intervention was also endorsed by H. Thomas Wells, Jr., the
president-elect of the American Bar Association, and by Kevin Bankston
of the Electronic Frontier Foundation, whose lawsuit on warrantless
domestic surveillance has prompted state secrets claims by the
Patrick Philbin, a former deputy attorney general, argued that any
legislative proposal to permit judges to overrule the executive branch
regarding the sensitivity of particular information "would be a
The prepared statements from today's hearing are posted here:
Congressional Documents on Secrecy, 2008
Last week, Senators Kennedy, Specter and Leahy introduced "The State
Secrets Protection Act." The text of that legislation is now available
Introduction of the State Secrets Protection Act (S. 2533)
As to who classifies things - me, for one. If there is a question on whether or not something should be classified, what level it should be classified, or what reason/justification should be used for classification (there are only a few reasons, BTW), there is a review board in my department that investigates. I can only assume that there are similar groups in place in other departments.
By the way, there are technically only three levels of classification:
Top Secret (TS) - The highest level of classification of material on a national level. Such material would cause "exceptionally grave damage" to national security if publicly available.
Secret - Such material would cause "serious damage" to national security if publicly available.
Confidential - Such material would cause "damage" or be "prejudicial" to national security if publicly available.
There are subsections of TS clearance, some of which fall under SCI (Sensitive Compartmented Information) and other names, but they are still technically "just" Top Secret. There are levels below Confidential, as well (Sensitive But Unclassified, Law Enforcement Sensitive, FOUO, etc) but there are technically NOT classified as they have no national security value (only personal, official, investigative, etc.)
While it would be possible to clear enough judges to hear most cases, the problem is not with the judges. It is with the plaintiffs, attornies, JURIES, and everyone else involved in a criminal or civil trial (remember, this is as much about civil cases as it is about criminal ones). It is simply not possible (or desireable) to have that many folks - cleared or not, they don't have a need to know - involved with our classified info. If we could boil it down to just the judges, we'd be able to make something work, but that isn't how our system functions...
A man fires a rifle for many years, and he goes to war. And afterward he turns the rifle in at the armory, and he believes he's finished with the rifle. But no matter what else he might do with his hands - love a woman, build a house, change his son's diaper - his hands remember the rifle.