Senator Kennedy has introduced S.2533, “The State Secrets Protection Act.”
A number of legal actions have hit a wall over the administration’s invocation of the state secrets doctrine. A litigant comes along and says, "You illegally spied on me, " or “You deported me to Egypt where they beat the crap out of me, and you had no reason to do so.” The government’s response has been, in essence, “We had an excellent and legal reason to do what we did, but unfortunately we can’t tell you what it is without compromising national security.”
Courts have been in the position of being almost forced into trusting the government’s representation, because to force the government to prove their claim would (obviously) destroy the very secrets they were proving necessary.
Senator Kennedy’s bill carves out a procedure where litigants could challenge those claims. Under this law. a trial judge could appoint a special master to review, in camera, claims about secrets. The special master would have to have the appropriate security clearance. The judge could even appoint cleared lawyers as guardians ad litem for a party that needed advocacy and the legal ability to review classified material. The judge could hold ex parte hearings, if he felt it necessary, with the record sealed to preserve it for appeal and still maintain security.
The judge retains the ability to dismiss the action if it simply cannot be litigated without exposing the government’s secrets. But now there’s a path to test the government’s claims without any real danger to those secrets.
I’m open to hearing any flaws I’ve missed here. But I contend S.2533 is an excellent solution to a vexing problem.
Why the security-cleared special master? Seems a needless added step. If the judge is to make any meaningful ruling, then sooner or later the judge him/herself, regardless of whether he/she has any security clearance or not, is going to have to look at the sensitive material.
If the judge can pick a special master with a security clearance, that gets around the problem of the judge himself not having the security clearance. The difference is that the judge himself picks the special master, and wouldn’t pick a special master that he doesn’t trust. Unlike the current situation, where the government just says “trust us”.
Same reason to have a special master in any case – expertise in areas the court may not have. This is precisely the step that makes this legislation a good idea.
Sounds good, though I predict arguments over who gets “special master” status (coolest job title ever, though). Presumably the federal gov’t is the one that grants/revokes security clearance, so I’d want some sort of guard against them using that power to compromise the impartiality of the special master.
Anything that gets us past “Trust us - We’re the Government” is a step in the right direction. I don’t think it goes nearly far enough, but it’s a start.
I reckon they’d have already been cleared, Simplicio, so that shouldn’t be the case.
I think it’s a great idea. Every time this comes up, I have wondered “So, get some cleared people to hear it and let’s go”.
It’s a real-world solution. I’ve worked on govenment contracts where some parts of the work had to be done by folks with security clearances. The work needs to be done, so they get the people who can do it, plain and simple. I see no reason legal cases like this can’t be approached from the same standpoint. It’s a ridiculous loophole and it’s high time it got closed.
Maybe. Or maybe he’d sign it, and attach a signing statement, “We reserve the right, in the name of national security, to nominate our own reviewing authority, and then withhold the classified material from that reviewing authority at our discretion.”
There is nothing so secret that it would burn the eyes of a judge. To imply that just him reading it compromises security is ridiculous. I think the premise is flawed .
It is an excuse to justify punishment without trial, a trial they well could lose.
I, for one, welcome this legislation, even though it is much too late. My favorite part of the legislation is that it also attempts to allow for substitution for information that may be a state secret. Take, for example, the case of Al Haramain v. Bush, where the NSA successfully suppressed, under the state secrets doctrine, previously tendered information (that the NSA had surveilled the plaintiffs) and then got the case dismissed for lack of standing. To me, that seemed like a complete travesty. I’m hoping the new legislation might give courts the ability to establish standing.
Not so. Not every federal judge has both a security clearance and the proper training to understand why a particular disclosure is fatal. If I were a judge, and the government said to me, “We intercepted and decrypted e-mail messages to the accused using our PGP-Breaker app using our solved Reinman-Zeta problem,” I wouldn’t necessarily understand that the very fact that they can read e-mail encrypted with PGP is an explosive secret, let alone how they did it.
That’s the kind of problem they face: to show their evidence, they have to let the accused know that his trusted process is broken, and then other bad guys will use something different next time.
A special master with cryptography experience and a security clearance, though, would grasp the significance – and also wouldn’t be fooled by a bullshit claim. A federal judge doesn’t necessarily have the training or experience to reach those conclusions.
What legal reason (excellent or otherwise) could they possibly have to do the above?? Or in other words, they should HAVE NO legal ability to do such a thing.
But other than that (and specially because it has no bearing on the discussion at hand really ) I’m all for this!
It might be that: (1) the goverment had a valid reason for deportation (e.g., the person was convicted of a crime, or had breached conditions of entry to the US), and (2) the government had no reason to believe that people in Egypt would torture the person in question. If that’s the case, the government is entitled to argue that way in court, or before a special master, as appropriate. Not all deportations are illegal, and the government can’t know every possible consequence of a deportation.
(And, of course, that doesn’t mean that the US government has not been using people in other countries to do its dirty work. I suspect that it has.)
Not true. If the person in question was an Egyptian national present in this country illegally, then we have every legal ability in the world to deport him to Egypt, and no particular responsibility for the actions of his countrymen upon his arrival there.
