THE ISSUE
The state secrets privilege rightfully allows the government to invoke the privilege in lawsuits or trials in order to protect classified information from being revealed during the hearing of the case. The concept is a reasonable one designed to protect our security.
However, the Bush administration has been abusing this privilege in order to deny rights to accused people and to hide its own misdeeds from the public. It was intended to be used to deny access to truly secret information, not to negate an entire trial.
For example, when several citizens filed a lawsuit complaining that they were illegally subjected to NSA wiretapping, the judge said they had to prove they had in fact been wiretapped. The government used the state secret privilege to deny them the ability to prove so. This conveniently also allowed the government to avoid having to show that it had followed the Constitution in establishing the program. In other cases the government has used the privilege to avoid court trials that would reveal its use of torture and of detaining innocent people.
The state secrets privilege was never intended to shield the government from accountability. Our civil liberties are being undermined and the government is using the privilege to protect itself instead of to protect our national security. The courts often do not even examine the government’s argument, they just take the government’s word that a state secret is involved.
S.2533 would establish a procedure that would allow a judge to consider the “state secrets” in private and them make a determination as to what evidence would be allowed and what evidence truly merited the state secrets privilege. This bill is worth our support. However, Republican Senator Jon Kyl is trying to add an amendment that would require the judge to give “utmost deference” to the government, which would in effect weaken the judicial review. The amendment should be defeated.
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