In a new challenge to President Bush's use of executive power, Senate Democrats want to make the government produce evidence to a judge for review when it claims that disclosing that evidence endangers national security.
The Senate Judiciary Committee's chairman is developing legislation aimed at reining in the administration's use of a state secrets privilege to argue for dismissing cases that might reveal misconduct.
Democrats contend the administration has used that tactic in cases involving terrorism suspects interrogated overseas and in the president's secretive surveillance program.
"It has taken a legal doctrine that was intended to protect sensitive national security information and seems to be using it to evade accountability for its own misdeeds," Committee Chairman Patrick Leahy, D-Vt., said Wednesday.
The Justice Department maintains that the privilege is rooted firmly in the Constitution and it is being used as it was intended: to prevent private citizens from filing lawsuits to force the disclosure of information that, if made public, would directly harm national security.
"Litigation may risk disclosing to al-Qaida or other adversaries details regarding our intelligence capabilities and operations, our sources and methods of foreign intelligence gathering, and other important and sensitive activities ...," Carl J. Nichols, deputy assistant attorney general for the Justice Department's Civil Division, said at a committee hearing Wednesday.
Attack on administration
Leahy's bill represents the latest scuffle between an administration prosecuting a war and other branches of government pushing back against what some say is the president's abuse of executive power.
The issue that chafes administration critics is the government's invocation of the privilege at the start of litigation, seeking dismissal of cases without making the evidence it claims is a state secret available to a neutral judge.
The U.S. Court of Appeals for the District of Columbia Circuit earlier this month reaffirmed a ruling that judges must be allowed to review all the evidence the government has _ not just what the military chooses to reveal _ when Guantanamo Bay detainees challenge their status as "enemy combatants" in court.
Members of Leahy's committee also are taking a stab at the issue. Leahy's bill is co-sponsored by Sens. Edward Kennedy, D-Mass., and Arlen Specter of Pennsylvania, the panel's senior Republican.
It would prohibit courts from dismissing a lawsuit until the parties have presented their evidence and the court has reviewed it. Each time the government pleads state secrets privilege, it would have to submit the evidence it says is a state secret and support the assertion with an affidavit signed by the head of the agency. The court would then make a privilege determination for each piece of evidence.
The bill also would require the attorney general to report within 30 days to the House and Senate intelligence and judiciary committees on each instance in which the government claims the privilege.
Claim used before
The state secrets claim was most prominently displayed in the case of Khaled el-Masri, a German of Lebanese descent who says he was abducted in December 2003 at the Serbian-Macedonian border and flown by the CIA to Kabul, Afghanistan, and abused as part of the administration's controversial extraordinary rendition program.
The Supreme Court last year refused to hear el-Masri's case, agreeing with lower courts that tossed out his lawsuit on the grounds that secrets would be revealed if it went forward.
President Bush and others have confirmed the existence of the CIA's extraordinary rendition program, but the facts central to el-Masri's claims "concern the highly classified methods and means of the program," the government said.
By refusing to hear el-Masri's case, the high court passed up an opportunity to review the doctrine of state secrets, which has been employed by this administration more frequently than its predecessors.