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Eric Friedman
(212) 382-6754
Christina Bruno
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New York City Bar Issues Statement on
Pending Legislation Addressing the State Secrets Privilege

New York, June 10, 2009 – The New York City Bar Association’s Committee on Civil Rights has issued a statement strongly supporting two pending bills that would establish procedures and legal standards to govern application of the state secrets privilege: (1) S. 417, the “State Secrets Protection Act”; and (2) H.R. 984, the “State Secret Protection Act of 2009.”

Arguing that the Bush Administration’s use of the state secrets privilege was “fundamentally in error,” and “given the Obama Administration’s continued reliance on the Bush Administration’s flawed conception,” the statement argues that legislation is required to regulate the courts’ consideration and application of the state secrets privilege:

“While the privilege has historical roots, it was rarely invoked until recent years, and the case law governing its proper application is relatively sparse. Following the attacks of September 11, 2001, however, the Bush Administration invoked the state secrets privilege with some frequency, and aggressively used it not simply to protect any particular piece of secret evidence, but to attempt to block judicial consideration of issues involving serious allegations of government wrongdoing, unlawful and unconstitutional government conduct, and violations of individuals’ constitutional and human rights.”

Both bills recognize the need to protect legitimate national security secrets in appropriate circumstances, but are intended to make dismissal of plaintiffs’ claims on state secrets grounds a last resort, and to require the courts to explore alternatives that would permit the litigation to go forward while also protecting the secret information.

While recognizing the importance of protecting “legitimate national security interests,” the statement maintains that the bills “would bolster the Judiciary’s constitutional role as a check on Executive power, restore the transparency and accountability necessary for a thriving democracy, and re-open the doors of our courts to provide relief to victims of government misconduct.”

The statement examines the provisions of the bills in detail and makes drafting recommendations designed to enhance the bills. The statement can be viewed at:

http://www.nycbar.org/pdf/report/20071746_Statement_Pending_Legislation.pdf

About the Association
The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.

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