GOVT RESISTS COURT REVIEW OF STATE SECRETS
http://fas.org/blogs/secrecy/2014/08/review-state-secrets/
It is "not appropriate" for a court to conduct its own independent review of evidence that the government asserts is protected by the state secrets privilege, attorneys for the government argued last week.
They
were objecting to an order that was issued in a lawsuit challenging the
constitutionality of the "no fly" list in the case of Gulet Mohamed v. Eric Holder. On August 6, Judge Anthony J. Trenga of the Eastern District of Virginia ordered
the government to submit for in camera review a copy of all documents
and testimony relevant to the case that it asserts fall under the state
secrets privilege.
Instead, government attorneys asked Judge Trenga in an August 22 motion
to reconsider his order "on the ground that the required submission [of
assertedly privileged material] is not appropriate or necessary for
evaluation of whether the state secrets privilege should be upheld or
whether dismissal is necessary, in light of the information already
provided to the Court on those issues."
"The
Government has provided... a thorough description of the harm to
national security that would result from the disclosure of the
privileged information. The additional submissions ordered by the Court
would not assist in that determination," they added.
But
the kind of in camera review that the government attorneys objected to
is actually among the "best practices" that should be adopted in all
state secrets cases, according to a 2008 Senate Judiciary Committee report on the State Secrets Protection Act, a bill that was intended to regulate the use of the privilege.
The
Act, introduced by the late Sen. Edward Kennedy, the late Sen. Arlen
Specter, and Sen. Patrick Leahy, would have "instruct[ed] courts to
avoid excessively deferential standards of review and to retain full
control over privilege determinations."
Among
other requirements, the Act required that "The Government must make all
evidence it claims is subject to the privilege available for the court
to review.... If the Government refuses to turn over evidence or to
provide a non-privileged substitute ordered by the court, the court will
resolve the relevant issue of fact or law against the Government."
The
Act's provision for in camera judicial review of privileged materials
"makes crystal-clear that the court, not the executive branch,
determines which items of evidence are privileged," the Senate report
said. "It requires the court to consider the actual evidence, rather
than rely on Government affidavits or representations about the
evidence, in making this determination."
This
is one of the steps needed to resolve "the crisis of legitimacy
currently surrounding the [state secrets] privilege," the Senate report
said.
However,
several Republican Senators on the Judiciary Committee disputed the
need for the State Secrets Protection Act. They said in dissenting views
appended to the report
that the right balance had already been struck. The Act was never
enacted into law and no other guidance on the proper use of the
privilege has emerged from Congress.
Therefore,
it will be up to Judge Trenga and his judicial colleagues to determine
the proper scope and application of the state secrets privilege in each
individual case.
Attorneys for the Plaintiff Gulet Mohamed said that they would oppose the government's motion for reconsideration.
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