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Senate Proposal To Clarify 'State Secrets' Doctrine 190

Posted by Soulskill from the you-can-trust-us dept.
I Don't Believe in Imaginary Property writes "Sen. Edward Kennedy (D-MA) and other lawmakers are pushing legislation to limit the power of the state secrets doctrine in blocking lawsuits. The doctrine has been used as a 'get out of jail free' card in cases like the EFF's warrantless wiretapping lawsuit. This new legislation would make it harder for the administration to invoke the doctrine, and provide new allowances, such as using attorneys with security clearances to enable the lawsuits to go forward even when the issue is appropriately raised." Update: 04/28 16:58 GMT by KD : The New Yorker is running a detailed piece, State Secrets, by Patrick Radden Keefe, about how the use of the state secrets doctrine is playing out in one particular case.
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Senate Proposal To Clarify 'State Secrets' Doctrine More

Senate Proposal To Clarify 'State Secrets' Doctrine

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  • Fat Chance! (Score:5, Insightful)

    by Anonymous Coward on Friday April 25, 2008 @11:42PM (#23205290)
    This administration will veto this faster than you can blink.

    Is anybody gullible enough to believe that Bush would actually sign a bill that could hold his administration responsible for its crimes?

    • Re:Fat Chance! (Score:5, Insightful)

      by OMNIpotusCOM ( 1230884 ) * on Friday April 25, 2008 @11:45PM (#23205296) Homepage Journal
      I think you give the Senate too much credit, my friend. I doubt they could work together to build a LEGO triangle.

    • Re:Fat Chance! (Score:4, Interesting)

      by Ihmhi ( 1206036 ) <i_have_mental_health_issues@yahoo.com> on Saturday April 26, 2008 @12:52AM (#23205548)

      And the United States Congress can override a veto with a 2/3 majority. If a Democrat wins the Presidency and Bush tries to veto this in the lame-duck period, they would probably be able to get the numbers they need to do it.

    • Re: (Score:3, Insightful)

      by Valdrax ( 32670 )

      Is anybody gullible enough to believe that Bush would actually sign a bill that could hold his administration responsible for its crimes?
      What makes you think that he'll still be in office by the time this passes? Hell, I'd hold off 8 months on it if I was working on it.

      No, the bigger threat is getting it past a Republican filibuster in the Senate (unless they flip flop on issues of Presidential power back to where they were when Bush replaced Clinton).

      • Re: (Score:3, Insightful)

        by jamstar7 ( 694492 )

        No, the bigger threat is getting it past a Republican filibuster in the Senate (unless they flip flop on issues of Presidential power back to where they were when Bush replaced Clinton).

        I'd pretty much count on that, if somebody from the Democratic wing of the Republicrat Party gets in. The Republicans screamed bloody murder when they thought Clinton was 'overstepping his authority', but it was a different story when one of their guys got in. They couldn't vote him enough power fast enough.

        And no, that

      • No, the bigger threat is getting it past a Republican filibuster in the Senate (unless they flip flop on issues of Presidential power back to where they were when Bush replaced Clinton).

        No, the bigger threat is that a Democratic President would veto it in a heartbeat too.

        Face it, there are a lot of things that are considered vile beyond belief...until YOUR Party does them. Then they're just "proper use of Executive Power". Note the War Powers Act as an example. Created by Congress to rein in a Presiden

  • Lawyer with a security clearance (Score:3, Funny)

    by markov_chain ( 202465 ) on Friday April 25, 2008 @11:56PM (#23205344)
    That'd be a cool job... suave lawyer type during the day, secret agent spy CIA-type at night! Like a corporate Indiana Jones.

    • Re: (Score:2)

      by L7_ ( 645377 )
      most of the lawyers that work for large defense companies have a security clearance... how do you think they do the legalese of contract writing with secret information for random government customers? The lawyers have to approve everything.

      And also, when there is a copyright or patent on work that is done by defense companies that come out of classified research, who do you think writes up and approves the patents? Engineers? No, lawyers do.
      • Sure, there are the those. But I'm talking about lawyers with extra awesome security clearance! They would have access to the secret government hideout, lots of cool weapons and transportation, and, of course, they would be combat trained. It goes without saying they would look and act well in tuxedos, kind of like James Bond but with a healthy dose of American swagger. Think Jay Bourne with ballroom manners.
      • Sure the lawyers for the big defense contractors have clearances. But don't hold your breath waiting for the EFF lawyers or your local solo practitioner to be issued clearances. The clearance rules disfavor people who have taken risks, people who have been entrepreneurs, and members of various arbitrarily disfavored social, ethnic, religious, cultural and/or political groupings.

    • That'd be a cool job... suave lawyer type during the day, secret agent spy CIA-type at night

      Suspect under interrogation: You don't know who you're dealing with, do you, Mr. Government Lawyer? The people I work for are way above your paygrade. All I have to do is sit tight and wait for the sun to come up tomorrow, and you'll get a phone call, and I'll walk right out of here! What do you think of that?

      Suavely dressed man: What do I think? I think a lot can happen between sunset and sunrise. Sure, I ha

    • Re: (Score:2)

      by Kjella ( 173770 )
      Uh huh, I think AT&T and the NSA have a pretty good idea what they've been doing. That means that unlike a lawyer that has to build a case, your job for say the EFF would primarily be to try cutting through the red tape through endless requests for information (don't think they'll hand it over just because you got a clearance). Plus you can't really tell your client what's going on or what you've accomplished because they don't have clearance, so you'll be an unrecognized nobody. I know you're probably

  • Who are these "Senators" anyway? (Score:5, Funny)

    by StefanJ ( 88986 ) on Saturday April 26, 2008 @12:00AM (#23205360) Homepage Journal
    What, they think they have some kind of power to question the authority of our Decider and Commander and Chief?

    Who appointed them as the law makers?

    Next thing you know those "Representatives" will claim they can hold the president accountable for lying, breaking the law, and violating his oath of office.

    I'd like to see them just try something like that.

    Really. I would.

    Please.

    • Re: (Score:3, Insightful)

      by freedom_india ( 780002 )
      True. The audacity of those congress and senate bastards.
      After all our Dear Leader has told numerous times, the state secrets is just.. a state secret.
      I mean even the president can't divulge state secrets because they are a state secret.

      Next thing you know those "Representatives" will claim they can hold the president accountable for lying, breaking the law, and violating his oath of office.

      One of the rights of the president is to mislead the enemy by planting false information. If that is called as lying, then the congress needs to have its head examined. Misleading is not lying. After all i didn't say 'i did not have sex with that woman'. And which congressm

      • Re: (Score:3, Insightful)

        by amRadioHed ( 463061 )

        After all our Dear Leader has told numerous times, the state secrets is just.. a state secret.
        I mean even the president can't divulge state secrets* because they are a state secret.
        * Except for in extreme circumstances, such as needing to discredit an ambassador who exposes the lies behind your justification for war. Or when needed to gain political advantage during an election.

        • Re: (Score:2)

          by neomunk ( 913773 )

          ...discredit an ambassador...

          It's nice to see someone remember an actual act of treason and remind us all that the purps are still running the show around here. The hypocrisy of that whole episode was phenomenal; had the sitting party been Democrats the Republicans would have been (literally) calling for officials throats to be slit. The media would have made it a 'known fact' that Ms. Plame was the only one standing between us and nuclear armageddon.

          Sibel Edmonds tells an interesting tale as well, but unsurprising. To paraphrase

    • Re: (Score:2)

      by Nimey ( 114278 )
      Dammit, that's "commander-in-chief". Stop that.

  • This seems so obvious. (Score:3, Insightful)

    by aleph42 ( 1082389 ) * on Saturday April 26, 2008 @12:02AM (#23205366)
    This seems so obvious; did no one had (the courage to have) that idea before?

    That said, "special attorneys" with security clearence are not that good of a solution if they are a small group and no one has to right to check on what they did.

    Plus, I would hate to see a whole "secret justice" aside from the normal one. What I mean is that cogress rejected the idea of "secret laws" a while ago, and I wouldn't want the governement to use "secret attorneys" as a way to push that idea again.

    • Re: (Score:3, Insightful)

      by GumphMaster ( 772693 )
      "Special attorneys" is an abhorent solution. Justice must be seen to be done and must be seen to be impartial. Secret courts and attorneys are the antithesis of this ideal.

    • Re: (Score:2)

      by bersl2 ( 689221 )
      As attorneys, they would (surely) still be subject to the strict rule of various bar associations.
  • Seriously, the whole secrets privilege thing is about as bogus as it gets.

    If there is info that really can't be released without jeopardizing security, then of course it should be kept secret and not disclosed. BUT... for the purpose of the lawsuit, that failure to disclose should be treated the same as any other failure to disclose. Which means "in the worst light possible" for the .gov.

    Basically, invoking the privilege is fine, but it should mean the government basically loses the case automatically.

    • Re: (Score:3, Insightful)

      by ScentCone ( 795499 )
      Basically, invoking the privilege is fine, but it should mean the government basically loses the case automatically.

      So, you can't see anything that President Obama, as he's re-sending Secretary Of State Carter back to have another friendly sit-down with Hamas (who just endorsed Obama - fabulous!), might have a need to keep secret... AND which should be that way? Or should his political opponents be able to sue him for political reasons, and automatically "win" (and what? get whatever they want?) because
      • Just think through the consequences of making anyone who decides to file a suit automatically win if the Commander In Chief doesn't cave in and dole out things that it's foolish to divulge.

        Thinking, thinking ... "a free country" is the main consequence I keep coming up with.

        I'm about as committed a Democrat as any, and I can tell you that I have no more problem with the idea of President Obama or President Clinton having to deal with this kind of condition than I do with President McCain having to do the sa

        • Re: (Score:3, Insightful)

          by ScentCone ( 795499 )
          the consent of the governed

          Right! And it is with that consent that a president is hired for four years, and trusted to do his or her job. Part of that job includes dealing with things that absolutely, positively should not be talked about in open court. If you don't like a particular administration well enough to give them that job (or re-hire them for another four years)... then all you have to be is persuasive enough to get people to vote your way. But you seem to be suggesting that no president can be

          • Re: (Score:2)

            by Tacvek ( 948259 )

            the consent of the governed Right! And it is with that consent that a president is hired for four years, and trusted to do his or her job. Part of that job includes dealing with things that absolutely, positively should not be talked about in open court.

            Who said anything about open court? The government could file any state secrets under seal, meaning the court and the involved parties are the only people with access. There should be basically nothing the government does that is so secret that filing it under seal in a case is completely unthinkable. And in those few cases, the government is not likely to get sued in the first place. If it does, then it will lose, simple as that.

            • If it does, then it will lose, simple as that

              So, we're back to you being OK with a structure wherein the only thing protecting covert activities, the people asked to risk their lives performing them, and the delicate relationships that realy upon them from disclosure in court is the unlikeliness that someone will sue? Are you even hearing yourself, here?

      • Re:Even Simpler... (Score:5, Insightful)

        by menace3society ( 768451 ) on Saturday April 26, 2008 @01:13AM (#23205620)
        There are things that Obama may not want to be public knowledge while they're going on (Hey guys, here's the President's itinerary, here's where he'll be on the plane, he'll be in this car in the motorcade, etc), but there's nothing that should be witheld from Congress. Period, end of story. Saying you can't trust Congress to do the right thing with sensitive information is basically a repudiation of democracy.

        • Re: (Score:2)

          by evanbd ( 210358 )
          There is nothing that both needs to be secret and is the only defense in a lawsuit they would otherwise lose. There's plenty that should be secret / classified / whatever, as you say. But under what possible circumstances is the President's future itinerary a key component of a lawsuit defense? Seriously. If it looks so wrong from the outside that they're going to lose a court case over it, then there isn't much that should be secret that could also make it not be an illegal act.

        • Re: (Score:3, Insightful)

          by ScentCone ( 795499 )
          Saying you can't trust Congress to do the right thing with sensitive information is basically a repudiation of democracy

          Ah, so you're saying that we CANNOT trust a politician (the president, whose job is to head up the executive branch, which runs the sorts of operations in question) to use good judgement and keep the appropriate information from leaking out and damaging foreign relations or getting people killed, but you're willing to trust 400 politicians to exercise that judgement flawlessly? Do you m
          • The point is that I don't trust a politician (or his aides) when it comes to protecting himself; I trust them more to judge fairly when the question of guilt falls on someone else. Further, it might only take one dissenting voice to get the truth out; the President can easily leverage force on one or two people, but the dozen or so members on a committee or 100+ in a full body won't be so easy to push around.

            This does not mean that the President must report to Congress every single thing he plans to do, bu
            • As for Clinton's handling of bin Laden, the "quiet communications" with other governments ended up doing as much damage to the operations as telling Congress possibly could have.

              Only because he insisted on seeing an attack on a naval vessel in a foreign port, and attacks on our embassies, as criminal matters. Many quiet conversations with third parties would never, ever get started or go anywhere useful if those third parties knews (as they absolutely would) that anything said would wind up in the news.
        • "Saying you can't trust Congress to do the right thing with sensitive information is basically a repudiation of democracy."

          Unfortunately, this has already been shown to be the case with respect to the allegations of illegal wiretapping by President Bush. It was the responsibility, and duty, of Congress to demand and conduct an (at least partially public) investigation into the activities of the president and his minions.

          Congress also let him off the hook on WMD misrepresentation (Gulf of Tonkin, anyone?),

      • Re:Even Simpler... (Score:4, Interesting)

        by Artifakt ( 700173 ) on Saturday April 26, 2008 @02:46AM (#23205900)
        The opposition probably shouldn't automatically win, but secrets need to be interpreted by the court as existing in the worst reasonable light. Note that that's worst reasonable, not worst possible. In some cases, we are definitely facing the opposition pretty much winning a point regardless of how that affects the whole court case.
              I don't mean the judge simply declaring an automatic worst case interpretation to the jury either, but there are things that just about any jury will take into consideration once they are said, even if the judge orders them to disregard those bits, and if that tips the whole judgment of the jury, than that's the risk the prosecution takes.
              Note that the government takes that sort of risk with perfectly normal, non-secret testimony too. That's why they should still face the risk if they use secret testimony.
              If the government wants to file a case against someone for espionage for example, and declares that some of their evidence is secret to protect the identity of an agent in place, it would probably be reasonable for the court to accept as a given that if said agent really exists then there is a real need to protect that agent's identity from disclosure. This still means we have testimony that would normally fall under hearsay rules, i.e. someone else has to testify, in court where he faces the possible penalties for lying under oath, that he heard the agent say something (or read or otherwise acquired the information that is now second hand). Even if the court were to accept that this situation is an exception to normal hearsay rules, in the same way as a deathbed confession can be, it's still reasonable to limit what can be used in the case, to make somebody be accountable for swearing that the reason for secrecy actually exists as stated, and all classification is based on that reason.
                If the source can't reveal even the cloudiest details about the location where the testimony originated, or the time it occurred, then the Defense should, at the very least, get to ask for something definite enough to be cross examined as a precondition of the evidence being admitted at all, and somebody to direct the cross examination at.
                For a protecting an agent's identity based claim, someone highly and publicly placed in the related intelligence agency should have to testify under oath that the information originated in their agency, from sources who were active agents at the time. We probably should have a lot more than that, but it's a necessary start for any kind of fair trial. Evidence that cannot be disproved is just like a scientific theory that can't be falsified - there is no such thing. If there is no ability to challenge, it's not evidence.
              If the government can't somehow offer evidence that has some testability or potential to be challenged, and limit the effects on the trial to ones relating to those parts of the testimony that can be examined, then they are in the position of asking the judicial system and the public to take any and all executive branch testimony on sheer, blind faith. At that point, what the executive branch is really violating is the principle of separation of church and state.

        • Re: (Score:2)

          by neomunk ( 913773 )
          Yeah, but your solution is elegant, sane and discourages malfeasance. Nobody (in the position to have a say in the matter) wants that.

  • It's about time (Score:5, Insightful)

    by MarkusQ ( 450076 ) on Saturday April 26, 2008 @12:17AM (#23205424) Journal

    It's about time.

    I wouldn't mind seeing the whole concept of "state secret" repudiated. It really has no place in a free society.

    If we really have a government of the people, by the people, and for the people what gives some part of that government the right to keep secrets from every other part, including the parts that are supposed to be watching over them and keeping them in check? The very notion should set warning bells off from here to next Tuesday.

    Think about it? In what other context would that sort of inversion of ultimate authority be considered even remotely reasonable? If you told your boss that you were working on a project that was so secret you couldn't tell them about it, or any of your co-workers, including accounting, HR, the legal department, and it involved you needing to have building security look the other way while you took things in and out of the building...how long do you think you'd be employed?

    -- MarkusQ

    • Re: (Score:2, Informative)

      by Gutboy ( 587531 )
      A little over two years. When I was in the Air Force we wrote software that we couldn't talk about to anyone, and they couldn't tell us what is was for. You wrote little tiny routines from vague specifications, they would be tested and returned if they didn't work. You could not be told what data was input and what didn't work, just that it didn't. Sometimes they updated the specs to be less vague so you could actually write something that worked.

      Best part was when you had to go to the bathroom. The spec

    • Re: (Score:2)

      by Tuoqui ( 1091447 )
      The problem with the position of president is that he is both EMPLOYEE (supposedly of the people) *AND* THE BOSS (of the country) at the same time. So when he says he's working on a super secret project that he cant tell anyone about then everyone has to sigh, twiddle their thumbs and hope he don't run the country into the ground then try to reverse the damage when he gets the hell out of office.

      • The problem with the position of president is that he is both EMPLOYEE (supposedly of the people) *AND* THE BOSS (of the country) at the same time. So when he says he's working on a super secret project that he cant tell anyone about then everyone has to sigh, twiddle their thumbs and hope he don't run the country into the ground then try to reverse the damage when he gets the hell out of office.

        Not quite. He's "the Executive," which makes him a rather important boss (roughly equivalent to a CEO), but n

    • While the phrase "state secret" has a sinister European feel to it, I'm always interested to know about the opposite. How can one country run around with no secrets, while its neighbors keep very good secrets? The open country will be at a huge disadvantage. Espionage works.
  • By passing a law to "limit" the power of the government to do CLEARLY ILLEGAL things it is already doing, they legitimize the very practice they are claiming to try to stop.

    What a crock of shit. Especially since it is so hypocritical. The effect would be almost the opposite of the stated intent.
    • Good point. Besides, it really gets down to the judges not buying the administrations bullshit, no matter what Congress says.

      So, yes, it is a sham, to coerce the Judiciary.

    • Re: (Score:3, Insightful)

      by menace3society ( 768451 )
      I agree. If the House and Senate feel that what the Executive is doing is clearly wrong, they have a Constitutional remedy for that. Doing anything less is, in the first place, an unpleasant moral compromise on their part, and in the second, a means of rendering the process they seek to stop legitimate.

      They should pass a law, a constitutional amendment, or get the Supreme Court to rule, to the effect that the most an officer or agent of the government can do in the name of state secrecy under congressiona
      • But they won't do this, because they are all a bunch of pansies who shrink from a fight, even over serious issues of governance. Somewhere, Abraham Lincoln is weeping.

        Isn't that exactly what the Democrats are trying to do here? Bills tend to become laws if passed.
        • No, that's not what they're trying to do. What they are trying to do is pass some laws that legitimate the state secrets doctrine. What we want them to do is declare it to be an invalid defense or excuse not to answer.

  • About time, but it doesn't go far enough (Score:5, Insightful)

    by Anonymous Coward on Saturday April 26, 2008 @12:21AM (#23205440)
    This is a privilege that should never have existed. Literally from the case that established it [wikipedia.org] the privilege has been consistently abused. Anything that can be done to reduce or eliminate its use should be done.

    If the government truly has secret information that bears on the case, they should have two choices. The first is to follow established legal procedures to present the information off the official record for the judge to make a decision on. And the second is to lose the case.

    But they should not have the right to say, "You'll have to trust that we could defend ourselves if we could tell you the full story, but we can't for national security reasons." Because giving them that right gives them the ability to wave a "get out of jail free" card whenever it is convenient. And it is convenient far, far more often than it is true.
    • The problem with your example is that this is going to end up being a Youngstown Steel [wikipedia.org] problem. The President will claim that the state secret privilege is a power granted to him by Article II of the Constitution, and thus Congress can't limit that power--just as Congress can't interfere with his power as Commander in Chief (itself a hotly debated point).

      The result will be that the Executive will be doing one thing, the Legislature another, and the Judiciary will be left to decide which branch has a strong

      • Re: (Score:2)

        by MarkusQ ( 450076 )

        The problem with your example is that this is going to end up being a Youngstown Steel problem. The President will claim that the state secret privilege is a power granted to him by Article II of the Constitution, and thus Congress can't limit that power--just as Congress can't interfere with his power as Commander in Chief (itself a hotly debated point).

        The difference being that his/her role as Commander in Chief is actually in the constitution. But where in section two do you see anything at all that

        • By "problem" I meant "question," not "difficulty." It puts the courts in the role of assigning power between Article I and Article II, a very different question than just interpreting laws.

    • Re: (Score:2)

      by Dirtside ( 91468 )
      Well, it's not quite as simple as that -- there ARE pieces of information that it could be disastrous if the government had to reveal them publicly in court, or even to parties to a lawsuit who aren't otherwise cleared for it.

      The problem with the way the state secrets privilege is currently used is that there is no oversight. The government says that they can't give evidence because it would compromise national security; all right, fair enough. But there has to be a check on that claim; someone relatively

      • Re: (Score:2)

        by Dirtside ( 91468 )
        Okay, so I know replying to yourself is frowned upon, but after reading Wikipedia's entry on the State Secrets Privilege [wikipedia.org], I have to amend my argument. It turns out that the presiding judge in the case is the one who considers the evidence and determines whether it qualifies as a state secret and can be excluded from the case; however (as the article points out) most judges are not especially qualified to make that determination -- and know it -- and so they frequently defer to the Executive, meaning that t

  • PDF of the bill (Score:2, Informative)

    by untree ( 851145 )

    I believe this link works:
    http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s2533is.txt.pdf [gpo.gov]

    That's for the bill as it was introduced -- couldn't find a copy of the bill post-committee amendments, probably because it hasn't been formatted by GPO yet.

  • Analogy (Score:2, Insightful)

    by flyneye ( 84093 )
    Having Kennedy(or for that matter any of the senate or house)working on this kind of legislation is kinda like having an arsonist driving the fire truck ,isn't it?

    • It's all an elaborate shell game. Anyone who thinks that either party really cares about what is best for the People is worse than gullible. They care about keeping people divided, they care about passing legistlation that will get them relelected and keep their coffers full of our treasure. They care about keeping people separated in their demographic groups, playing off the tension so they can keep incrementally increasing their power while diluting ours.

    • Re: (Score:2)

      by bconway ( 63464 )
      Ted Kennedy's a funny one to be talking about limiting lawsuits, given that whole driving-people-off-bridges-and-killing-them thing.

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