Copyright, Washington Post 2008

Senate Panel Advances State Secrets Bill

By Laurie Kellman
4/24/2008

A Senate panel advanced a bill Thursday that would limit how and when a president can withhold evidence from courts considering lawsuits against some of his most controversial policies.

By 11-8, the Senate Judiciary Committee approved the bill limiting the so-called "state secrets privilege," a frequent legal defense President Bush uses to withhold evidence from plaintiffs in suits challenging his anti-terrorism methods.

The bill is not expected to receive a final vote this year. Attorney General Michael Mukasey has signaled that Bush would veto it, and Republicans could deny supporters the votes to override.

The measure would set rules for asserting the privilege. Each time the government claims the privilege, it must submit an affidavit explaining why the information sought should remain secret. If the court agrees that certain evidence is privileged, it must order the government to produce unclassified or blacked-out versions of the sensitive information if doing so would not harm national security.

If the government refuses to do so, the court can rule against the government.

Also under the measure, the attorney general is required to report to the House and Senate Intelligence and Judiciary committees every time it claimed privilege.

The act would apply to any civil case pending on or after the date of its enactment into law.

That day is not near, according to administration officials. In a March 31 letter to Chairman Patrick Leahy, D-Vt., Mukasey indicated Bush would veto the bill if it survived Congress and landed on his desk.

Congress, Mukasey wrote, probably doesn't have the authority to alter the state secrets privilege because it is rooted in the Constitution "and is not merely a common law privilege."

He added that the bill would shift responsibility for making national security judgments from the executive branch to the courts, "which have neither the constitutional authority nor the institutional expertise to assume such functions."

The state secrets privilege was formalized in 1953 when the Supreme Court held in United States v. Reynolds that the United States may prevent the disclosure of information in a judicial proceeding if "there is a reasonable danger" of exposing "military matters which, in the interest of national security, should not be divulged."