Last Friday, the House Judiciary Committee, by a vote of 18-12, approved a bill entitled The State Secret Protection Act of 2009, which, if enacted, would be the first law ever to regulate and limit the President's ability to use the "state secrets privilege" to compel the dismissal of lawsuits that allege lawbreaking by executive branch officials. The bill was first introduced in 2007 in response to the Bush administration's radical abuse and expansion of the privilege, and was re-introduced earlier this year in response to the Obama administration's identical abuses.
The lead House sponsor of the bill is Rep. Jerry Nadler of New York, the Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. He's my guest today on Salon Radio to discuss why these limits are so imperative, how the Obama DOJ has been abusing the privilege, and why internal, voluntary DOJ safeguards are inadequate. When the Judiciary Committee approved the bill on Friday, Nadler said: "The state secrets doctrine, as it has been reinvented in the last few years, is the greatest threat to liberty in this country. It must be limited and controlled." In the interview, he explains his rationale behind that striking claim, and he also explained this about the dangerous reinvention of the privilege over the last several years:
JN: The Bush administration made two changes, both of which have been embraced by the Obama administration. One, it started using this doctrine, which was used very sparingly before, all the time. And secondly, it invented, not only to say, you can't see a document, but it invented the use of saying, you can't have a lawsuit, of coming into court right on the pleadings, right after the initial filing of the initial complaint, to say, stop the lawsuit, because, not that you can't see a document, but the very consideration of the lawsuit, the very consideration of the case, will endanger state secrets, and dismiss the case right off the bat.
And that hides everything. If you dismiss the case right off the bat, then you can't use the case to find out what's going on, to prove that the government is violating rights, is engaging in torture, or is wiretapping without a warrant or whatever. That's what I meant by reinventing. It was never used until the Bush administration to dismiss a case right upfront.
GG: And you feel that it's fair to say, as I think you just did say, that in cases involving rendition, brought by victims of torture, people alleging they were subjected to illegal warrantless eavesdropping, that the Obama administration has been using this privilege in exactly the same way, meaning in this way that's reinvented, by saying not just these specific documents are subject to the state secrets privilege, but the subject matter itself is?
JN: Yes. They said that in court on a number of occasions, and they've in a number of cases, the al-Haramain case, in another case the Jeppesen case, they've taken exactly the same position, saying that you can't consider the case, as the Bush administration did, and they've argued in courts, in appellate courts, they've sought review, to defend that position.
Indeed they have. And that's why this legislation is as imperative as ever. Nadler characterizes the threats posed by these abuses as far more odious even than those posed by the excesses of the Patriot Act. But as he put it in the interview: "One of the basic problems is that I have to think that the administration is not going to support the bill, and it's going to be very difficult to pass it." I'll be writing much more about ways to apply pressure to induce enactment of this legislation. If nothing else, it's refreshing to see Democratic members of the House fulfilling their duty to act independently of the executive branch and try to impose limits to curb presidential abuses of power, even when the President is a member of their political party.
The discussion is roughly 10 minutes in length and can be heard by clicking PLAY on the recorder below (as always, the podcast can be downloaded as an MP3 here, or iTunes here). A transcript is here.
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