Congressman Nadler to hold hearings on State Secrets

(11 am. – promoted by ek hornbeck)

Representative Jerrold Nadler of New York is to hold hearings on state secrets.

Rep. Jerry Nadler (D-NY), who chairs the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary committee, will host hearings Thursday to examine how to curb abuse of the privilege, while protecting true state secrets.

As a candidate, Obama criticized President Bush for being too quick to invoke the privilege. But since taking office, his administration has angered civil libertarians by likewise invoking it in cases involving warrantless wiretapping and renditions.

Testifying at Nadler’s hearings will be Patricia Wald, a retired federal judge; Asa Hutchinson, the former GOP congressman from Arkansas; Ben Wizner of the ACLU; and Andrew Grossman of the Heritage Foundation.

The left was critical of President Bush’s use of state secrets privilege as a matter of principal.

It was understandable why, Bush was such a reactionary President that invoked the states secret doctrine way too often and without transparency. One of Obama’s critiques of Bush was that he had ignored public disclosure rules.

 ‘Secrecy in the name of security’ can not overshadow the importance of open government—

regardless of who is in power we need to be wary when the government can arbitrarily claim to withhold evidence in civil cases because information could jeopardize national security.    

It was back in April in which Obama had come under fire for seemingly to continue the state secrets program unabated.

The government argued in Jewel v. NSA

that the suit should be dismissed out of hand because of the state secrets doctrine, and even if it were not so dismissed, it should still be dismissed because the government can never be sued for conducting surveillance that violates federal privacy statutes –  are deeply disturbing because they are as bad, if not worse, than the arguments the Bush administration made in similar surveillance cases.

I guess Obama deals in nuance and renounced the governments position a couple of weeks after.

That sounds like the Obama administration will not be appealing the decisions in Jeppesen and Al Haramain or any other potential wiretapping, rendition, or torture case on state secrets grounds again, though the Jeppesen decision (pdf) effectively closed most avenues for more argument on those grounds.

Obama said afterwards

I actually think that the state secret doctrine should be modified. I think right now it’s overbroad.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court, you know, there should be some additional tools so that it’s not such a blunt instrument.

Senator Leahy has already proposed legislation to deal effectively with the use of state secret privilege….


Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege

Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters

Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits

Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense

Require judges to order the government to produced unclassified or redacted versions of sensitive evidence when possible to allow cases to move forward safely

Establish security procedures to ensure that secrets are not leaked during litigation, including closed hearings, security clearance requirements, sealed orders, and expedited appeals

Establish congressional reporting requirements

Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution


Anyways, it should be interesting to see what comes of Nadler’s hearing!


  1. is a Democrat I really like.

    • sharon on June 3, 2009 at 6:21 am

    nadler is my congressman and i was furious with him all of last year re his refusal to support impeachment.  it was clear he agreed with us in meetings – said so himself – but he refused to take action.  it is restoring my confidence in him to see him step up to the plate now. david swanson posted a diary at orange re nadler speaking about accountability at the future is now or whatever the name is of the conference that just happened in dc today and yesterday.  he said that nadler said that he would not rubber stamp obama as the republicans had bush.  i am beginning to like him again.

    in case folks want to know what happened at this conference, david has written a detailed report.

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