State Secrets Legislation Re-Introduced

Sens. Specter, Leahy, Feingold, Whitehouse and Kennedy unveiled the 2009 version of their State Secrets Protection Act today. Its aim is to provide guidance to federal courts currently considering cases involving the ever-so-controversial State Secrets Privilege.  The legislation codifies best practices that some courts use but others don't, like the appointment of special masters to independently evaluate intelligence information.  The government would be required to disclose the evidence behind its particular privilege claims to judges, and not merely assert that such evidence exist.  Also, judges wouldn't be able to dismiss the case solely because the privilege has been asserted; the pleadings stage must have been underway, along with document discovery. (Note: judges can still dismiss the case solely based on the privilege claim, but he or she must vet the information in a legal proceeding beforehand, and must allow the defense to make a counterlcaim.) The legislation would establish new safeguards for protecting classified information and provide a way for judges to report on the cases to Congress.