Policy and News Updates for February 26, 2008


In This Issue: [click on the link to go to the corresponding section]

I. Senators Kennedy, Specter, and Leahy introduce legislation to clarify "state secrets" privilege
II. OpenTheGovernment.org supports FOIA, whistleblower protection efforts
III. Washington Post prints OpenTheGovernment.org-CREW letter to the editor re: NARA, Presidential Records Act

News from Coalition Partners & Others

 

I. Senators Kennedy, Specter, and Leahy introduce legislation to clarify "state secrets" privilege

Senator Ted Kennedy (D-MA) introduced S. 2533, the State Secrets Protection Act, joined by Senator Arlen Specter (R-PA) and Senate Judiciary Committee Chairman Patrick Leahy (D-VT). The State Secrets Protection Act seeks to strike a better balance between the governmental desire to protect sensitive information, and the twin rights of citizens: to obtain justice, and to have confidence that a government claim of the "state secrets" privilege is only made in cases where information has been classified because its release would endanger national security, rather than merely revealing embarrassing or politically inconvenient information. Unfortunately, the privilege, which has its roots in common law, has become a popular tool for the executive branch to shield itself against inquiries and litigation; studies show that the privilege has been claimed more often by this Administration than predecessors. Moreover, the trend is toward the government claiming this privilege earlier in civil litigation, to block discovery. The end result is often the complete dismissal of cases, denying both judicial review of alternative methods of presenting the information needed by the litigants and the possibility of adjudication on issues not related to the claim of state secrets.

The information at the heart of the seminal "state secrets" case, U.S. v. Reynolds (1953), was revealed recently not to be classified information, as claimed by the government and accepted by courts in that case and for decades afterwards. Rather, upon recent declassification, it was exposed as merely evidence of ordinary – albeit embarrassing – negligence on the part of the U.S. Air Force during a domestic peacetime flight. This revelation raises doubts about arguments that the state secrets privilege is proffered only when necessary, and that it is wielded exclusively in good faith. Now, with a secretive Administration arguing that entire legal questions are off-limits, such as warrantless wiretapping and surveillance programs, the State Secrets Protection Act offers to provide an effective compromise that protects real state secrets and the integrity of the justice system together.

Earlier this month, the Senate Judiciary Committee devoted a hearing, "Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability", to testimony from a quintet of witnesses: former chief judge of the D.C. Circuit, Patricia Wald; constitutional law specialist Louis Fisher; Carl Nichols of the DOJ Civil Division; attorney Michael Vatis; and Professor Robert Chesney. Panelists and Committee Members discussed the standard of review, the extent of advisable deference, the potential for abuse and remedies for such occasions, the evolving nature of separation-of-powers questions during times of war and other heightened-national-security states, and how the judicial branch can review other co-equal branches without effectively overshadowing them and their constitutional powers.

 

II. OpenTheGovernment.org supports FOIA, whistleblower protection efforts

OpenTheGovernment.org joined an amicus curiae brief in Taylor v. Sturgell, requesting that the Supreme Court grant certiorari in a case from the D.C. Circuit. The brief, filed by the National Security Archive, OpenTheGovernment.org, the Reporters Committee for Freedom of the Press, the National Whistleblower Center, and the Electronic Frontier Foundation, asks that the Court protect the individual FOIA rights of FOIA requestors. The brief argues that "the concept of virtual representation applied in a FOIA matter raises serious concerns. FOIA requests are filed by many different people for many different reasons… Because a FOIA request depends on a series of deliberate actions by an individual, rather than a government action that generally affects the public, it is unlike the ‘public law’ cases that some courts have described as more appropriate for a finding of virtual representation. No one lawsuit will achieve FOIA’s public purpose (or, indeed, another requester’s individual interest); the statute is designed to fulfill the public part of its purpose through many individuals each reminding federal agencies that they cannot operate in secret."

OpenTheGovernment.org also joined 45 groups in signing a letter to the Senate in support of S. 2663, legislation to extend whistleblower protection to strengthen the Consumer Product Safety Commission. In the last year, Congress approved such protections for public-safety whistleblowers in ground transportation industries and defense contracting; as the Government Accountability Project wrote, "nearly every Senator has supported analogous anti-retaliation provisions in every relevant, recorded vote since passage of the 2002 Sarbanes-Oxley law." Signatories to the letter include good-government, consumer, health, and civil rights groups from across the country.

 

III. Washington Post prints OpenTheGovernment.org-CREW letter to the editor re: NARA, Presidential Records Act

Records Begin With Record-Keeping (February 26. 2008)

The Feb. 8 editorial "Clinton Records Watch" raised an important issue about the delay in releasing presidential records but failed to emphasize that this delay results from inadequate resources and a law that gives incumbent presidents unreviewable discretion over their records.

The National Archives has too few staff members to process the enormous volume of presidential records. Congress should appropriate more money to preserve our nation’s history, a far more worthy goal than building bridges to nowhere.

The problem is exacerbated by the lack of an enforcement role in the Presidential Records Act. Congress presumed that presidents would comply with the law, a presumption undermined by the actions of the current president. Citizens for Responsibility and Ethics in Washington and the National Security Archive are suing the White House over millions of missing federal e-mail records but have no recourse for the millions of presidential e-mail records that have also vanished. We need a legislative solution that allows outside groups and the National Archives to address record-keeping problems while a president is still in office.

Congress could begin to address these problems by allocating adequate resources and providing a statutory remedy. The Post should be addressing those issues to ensure that vital records are available for generations to come.

Patrice McDermott, Director, OpenTheGovernment.org

Anne Weismann, Chief Counsel, Citizens for Responsibility and Ethics in Washington

 

News from Coalition Partners & Others

 

American Association of Law Libraries Announces New Blog

The Washington Affairs Office of AALL is pleased to announce its new blog, AALL’s Washington Blawg. The Washington Blawg will highlight bills in Congress, Action Alerts, news and resources, events, and more; the blog will address important topics such as access to government information, digital authentication, copyright, and open government issues. Visitors can keep up with regular updates by subscribing to the RSS feed, signing up for email updates, or by visiting the blog for the latest news.

 

 

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