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State Your SecretsThe smart way around telecom immunity.

By Justin Florence and Matthew GerkePosted Wednesday, Nov. 14, 2007, at 11:32 AM ET

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Daniel Greenberg offered a history lesson on the U.S. government's involvement with telephone surveillance. Orin Kerr, Patrick Keefe, David Kris, and Marty Lederman dialogued about government surveillance in the United States. In 2006, Fred Kaplan proposed ways the NSA could fix its data mining program; in 2007, he warned that domestic spying was on the rise.

A solution to the state secrets problem should achieve three goals: ensuring the administration doesn't abuse the privilege; getting justice for litigants; and guaranteeing the secrecy of genuine state secrets.

Here's how a legislative fix we've suggested to the Senate judiciary committee would meet these requirements. First, in a secure proceeding, a court would review evidence the administration claimed was protected by the state secrets privilege. The court would rule on what really must be kept secret. The law would also require the president to tell Congress when and how he is using the privilege, so that even if a court allowed the executive to keep evidence away from litigants, Congress could provide a political check.

Second, a new state secrets privilege act would require the government to create unclassified versions of the evidence where possible, so that the litigation could proceed. It would end the practice of dismissing cases at the get-go based on the administration's blanket state secret claims. Instead, the law would provide for flexible procedures so that the government could avoid admitting or denying allegations in answering a complaint if it felt doing so would endanger national security. But plaintiffs would always get a chance to make their case, and defendants would always get a chance to show a court their defense.

Finally, the new act would include extensive procedures to guarantee that actual state secrets are protected. It would take advantage of procedures already in place in criminal cases, through the Classified Information Procedures Act we've mentioned, that govern the transmission and safekeeping of secret evidence. It would also allow the government to appeal a state secrets ruling by a lower-court judge immediately, in case such a ruling might harm national security. And Congress would allow the government to get a waiver in extreme cases, in which even showing the evidence to a federal judge under seal might endanger national security.

Congress has the constitutional authority to enact all of these provisions: The Constitution explicitly grants the legislature the power to enact regulations concerning the jurisdiction of federal courts. Last month, the Supreme Court passed up its own opportunity to curb abuses of the state secrets privilege when it declined to consider El-Masri's torture and rendition case. The ongoing FISA debate gives Congress an opportunity to step in where the court has failed to. If Congress is serious about allowing the telecoms to defend themselves, while holding the administration accountable, fixing the state secrets privilege is the place to start. Then, it'll be time for the administration to state its secrets.

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Justin Florence and Matthew Gerke are fellows at the Georgetown Center on National Security and the Law.

COMMENTS

Remarks from the Fray:

This is exactly what we need. The only problem is that you left windows for blocking a judge from reviewing the evidence. There needs to be an explicit statement in the law that NO secret information relating to the case is beyond the authority of the judge.

The judge MUST be allowed to review the evidence and make a ruling. What you proposed will limit the ability of the government to abuse the state secrets privilege, but as long as it is possible to hide information from a judge, there will still be room for cover ups.

If we've learned anything from this administration, we must know that any place their is room to allow a cover up, it will be used and abused. (eg, the "Cheney is not a member of the executive branch" argument.)

--michiganfan

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(11/18)

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