Friday, February 13, 2009
In the wake of the Obama administration's assertion of state secrets in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit case on extraordinary rendition (more here, and see Glenn Greenwald's excellent analysis at Salon.com), legislation has been re-introduced in the Senate and the House to curb administration assertions of the state secret privilege and to guide the courts in ruling in those cases. I haven't been able to track down the bills, but the Senate bill from the last Congress is here.
According to Senator Leahy's press release, the legislation will set uniform procedures for federal courts considering the state secret privilege, require judges to review evidence upon which the privilege is based (and not just rely upon government affidavits), and establish other procedures to promote the responsible use of the privilege.
The Report accompanying last Congress's Senate bill makes for good reading on the Senate Judiciary Committee's views on state secrets and separation of powers. The (Democratic majority) Report:
Courts and scholars have debated the origins of the privilege and whether it is a "mere" common law rule or whether it also has some foundation in the Constitution, notwithstanding the lack of explicit textual or historical support for such a view. Regardless of whether the privilege has any constitutional dimension, however, there is widespread agreement that Congress has constitutional authority to regulate the privilege, based on its Article III powers to set rules of procedure and evidence for the Federal courts, its Article I powers related to national security and foreign affairs, and the Necessary and Proper Clause. Article II is not the only relevant part of the Constitution. Even if the state secrets privilege were in some respect "rooted" in our constitutional structure, there is no bar to Congress, using its own authorities rooted in the Constitution, exercising concurrent authority over the protection of state secrets or providing rules for implementation of the privilege.
The Republican minority argued that the bill was unnecessary (because the privilege was infrequently invoked) and even potentially harmful to national security.