Chances are that when you hear the word ‘bipartisan’ on Capitol Hill these days, it means someone is about to try to convince you to do something “my way.”
So it’s both rare and refreshing when two titans from opposing political parties actually come together to do something important.
The titans in this case are Teddy Kennedy and Arlen Specter. Specter, a former prosecutor and the ranking member of the Senate Judiciary Committee, is a Republican from Pennsylvania. Massachusetts Democrat Kennedy -- “the lion of the Senate” -- is a member of the same committee.
Alarmed by the Bush Administration’s increasing use of the so-called “state secrets privilege” to keep politically embarrassing lawsuits against the government from ever coming before a judge, this odd couple is teaming up to convince their Congressional colleagues that people with grievances against the government can get their cases heard.
Kennedy and Specter have introduced a new bill to provide a mechanism for protecting legitimate “state secrets” while also permitting civil litigation to proceed.
The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation.
The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25% more cases each year than previous administrations, and has sought dismissal in over 90% more cases.
The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.
The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act," according to Senator Kennedy's office.
In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”
The proposed new law “clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege," Kennedy says.
Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege."
The bipartisan Constitution Project found that "legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."
And a group of leading constitutional scholars wrote to Congress emphasizing that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."
The absence of such rules has resulted in the dismissal of a number of
high-profile lawsuits against the government. For example: