Shays Looks to Limit State Secrets Privilege (protect whistleblowers now?)

Shays Looks to Limit State Secrets Privilege

Rep. Christopher Shays (R-CT) has introduced a bill to prevent the administration from abusing its all-powerful state secrets privilege. Based on the 1953 Supreme Court ruling in Reynolds v. United States, the state secrets privilege allows the executive branch to declare certain materials or topics completely exempt from disclosure or review by any body.

The state secrets privilege, rarely used by past presidents, has already been invoked 24 times by the Bush administration, more than any other administration over a six-year period, according to studies conducted by University of Texas-El Paso and the National Security Archive at George Washington University. In just five and a half years, the Bush administration has used this privilege almost half the number of times it was invoked between 1953 and 2001, when the combined use of 8 presidents -- Eisenhower, Kennedy, Nixon, Ford, Carter, Reagan, the first Bush and Clinton - amounted to 55 claims of state secrets. While in the past the power was used to keep specific documents from disclosure, recently the privilege appears to be invoked to deflect lawsuits against the government. It is a trend that has many concerned, including Shays.

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Essentially, in each of these cases the Department of Justice has used the state secrets privilege to shut down cases against the federal government, claiming that any discussion of the lawsuit's accusations would endanger national security. With a growing array of challenges to the government's handling of terror suspects and warrantless domestic wiretapping, target cases for this tactic are in far from short supply.

Shays believes that the state secrets provision has been used too frequently and with little public protection. In particular, he is concerned that whistleblower cases will continue to be rejected with the president employing the state secrets privilege. Accordingly, Shays has proposed language to the Executive Branch Reform Act of 2006 (H.R. 5112) that would limit the use of the state secrets privilege in blocking whistle-blowers' lawsuits. Specifically, the provision requires that courts rule in favor of a whistleblower claim if the government invokes the state secrets privilege to end the case. Basically, so long as an inspector general investigation supports the overall claim of the whistleblower and the government could no longer get a dismissal of the case by claiming state secrets privilege. Instead, under these provisions, the case would automatically be ruled in favor of the whistleblower without any public discussion of the details. In cases where no inspector general investigation has been conducted, the administration must explain to Congress why the use of the privilege is necessary and demonstrate that efforts have been made to settle the case amicably. The bill containing the Shays language was reported out of the House Government Reform Committee.

''If the very people you're suing are the ones who get to use the state secrets privilege, it's a stacked deck,'' said Shays, who has long been a proponent of limiting government secrecy.