Pending bills could strengthen judicial branch review of Federal "state secret" claims and legislative branch oversight of intelligence activities.
The House of Representatives version of the State Secrets Protection Act has been approved by House Subcommittee on Constitution Civil Rights and Civil Liberties, and is currently under review by the House Judiciary Committee. The Senate postponed debating its version of the bill, where it faces strong Republican opposition.
If enacted, the State Secrets Protection Act would allow courts to review in camera Federal assertions of the state secret privilege.
Currently, cases are routinely dismissed when Federal attorneys evoke the privilege, without any probing by courts into the validity or relevancy of the Federal secrecy claims.
Civil liberties advocates and government watchdogs have criticized both the Bush and Obama administration for overusing the privilege, and some lower courts have begun questioning whether the privilege is being asserted appropriately.
Ironically, declassified documents recently proved that Federal officials fabricated the national security secrecy claims in the 1953 Supreme Court case on which Federal state secrets claims are based, United States v. Reynolds. In the Reynolds case, the Air Force appears to have lied about a supposedly secret project in order to cover up an embarrassing lapse in maintenance that caused a deadly plane crash.
The so-called "Gang of Eight" bill backed by key house Democrats would dramatically expand Congress' view into intelligence operations by allowing all 37 members of the Senate and House intelligence oversight committees to be briefed on all intelligence matters.
Under current rules, ranking House and Senate leaders from both parties, as well as ranking House and Senate intelligence committee members from both parties form the so-called "Gang of Eight" who receive briefings on the most sensitive intelligence operations and information. The bill was introduced in the wake of claims by House Speaker Nancy Pelosi that CIA had misrepresented its torture and extrajudicial detention programs in its reporting to the Gang of Eight. Opponents of the measure fear that leaks of sensitive national security matters are inevitable, with nearly 40 legislators allowed access to intelligence information.
The Gang of Eight bill also contains provisions that make the National Security Agency more accountable to the legislative branch and strengthen NSA's internal safeguards against ethics, civil liberties, and law violations. For example, the bill requires Senate confirmation for nominees to the positions of NSA director and general counsel, which is already required for CIA's top posts. To shore up NSA's weak internal checks against wrongdoing, the measure also creates an independent (not fire-able by the NSA Director) inspector general position.
If passed, both of these bills would have far-reaching consequences for the Obama and subsequent administrations. A congress with more information on intelligence activities is more likely to assert its prerogatives in small and large national security matters. Increased judicial review into controversial national security-related litigation also promises to ensure that the Obama administration be looking to the past as a floodgate of litigation related to torture, detention, and domestic intelligence activity opens.
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