Representative Jerrold Nadler, chairman of the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary committee, held a hearing yesterday to discuss the long-overdue State Secret Protection Act of 2009 (H.R. 984).
Ben Wizner, lawyer for the ACLU, testified at this hearing to argue in favor of the bill, which sets the boundaries for the executive branch’s use of the state secrets privilege.
The state secrets privilege is a rule in which the government can ask the court to remove certain evidence from a case because the evidence involves a “state secret,” confidential information that, if disclosed, could endanger national security. The Bush administration has utilized this rule more than any other administration in history (a record 23 times in four years), notably during an ACLU case, Mohamed et al. v. Jeppesen DataPlan. In this case, five men were kidnapped and tortured under the CIA’s “extraordinary rendition” program. And in both cases, the government asked the courts to block the cases completely, claiming that the lawsuits were too confidential and that state secrets could be revealed. In effect, the plaintiffs were not even allowed a trial.
But now the tide is finally turning. In April, the Ninth Circuit Court of Appeals overturned a lower court’s ruling on the Jeppesen case, noting, in Mr. Wizner’s words, that “the state secrets privilege should be applied to discrete pieces of evidence instead of entire cases.” And at yesterday’s hearing, most of the members and witnesses agreed with Mr. Nadler’s statement that “the Executive cannot be its own judge.”
Among other things, this bill would make sure that judges do a preliminary review of the supposedly confidential information before coming to a decision. It would provide a consistent procedure for all judges and ensure that the executive branch does not abuse its power.
We fully agree with witness Asa Hutchinson’s assertion that the executive branch should “not be immune to checks and balances,” as well as Hon. Patricia Wald’s statement that this “legislation is long overdue.” The three branches of government are supposed to be co-equal, and Congress is completely justified in creating legislation that balances the Executive’s power.
The state secrets privilege, as it is now, is much too broad; the executive branch cannot have complete immunity. This bill will finally help to rein in executive power, and hopefully provide long-overdue justice for Mohamed and others. As Chairman Nadler admirably put it, “every right must have a remedy.”