State Secrets Protection Act (Senate and House bills attached), plus analysis of Senate bill

February 11, 2009

* Texts of the State Secrets Protection Act bills in Senate and House, plus an analysis of the Senate bill

Here you will find the text of both the Senate and House bills introduced today in connection with reform of the State Secrets Privilege (thank you list members).  They are in fact the same bills as were introduced in the last Congress (the original SSPA bill in the Senate is here, for example, and the House bill is here).

These bills present a host of complicated issues, and it would not be right to try to highlight and assess them all in this brief space.  So, instead, I’m attaching a 12-page document that I wrote last year, constituting a sort of section-by-section analysis of the Senate bill.  It is largely supportive of the bill, but highlights a handful of issues that I think may be problematic or at least require further consideration.

I do not have a similar existing section-by-section analysis for the House bill, though I will note that it is not identical to the Senate bill and does raise some additional concerns (e.g., section 6(c) of the House bill purports to direct judges to give no special deference to the judgment of the executive branch with respect to whether disclosure of the information at issue poses a sufficient risk of harm to warrant application of the privilege).

* State Secrets Protection Act (reintroduced today)

Hot on the heels of DOJ’s continued assertion of the state secrets privilege yesterday in Jeppesen, the leading sponsors of last year’s state secrets-reform legislation today reintroduced the State Secrets Protection Act.  From the press release, it sounds much like the earlier version.

I have not yet been able to obtain the text, but when I do I will circulate an analysis (if you have the text, please pass it along!).  In the meantime, you can click here for video and prepared testimony from the hearing the Senate Judiciary committee held last February in connection with the original bill.

Goldsmith on detention options and national security courts

February 11, 2009

* Jack Goldsmith, “Long Term Terrorist Detention and Our National Security Court” (Feb. 9, 2009)

A Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution

This 20-pager is a must-read document for those following the debate about how best to proceed in connection with detention policy.  From the introduction:

For years there has been a debate about whether to create a national security court to supervise the non-criminal military detention of dangerous terrorists. The debate has many dimensions and is often confusing. Some national security court opponents are really opposed to the non-criminal military detention system that such a court would supervise, and insist that terrorists be tried in criminal court or released. Other opponents of a national security court accept the need for non-criminal military detention but do not favor institutionalizing a new and “secret” court to oversee these detentions. Proponents of a national security court come in many stripes as well. They advocate many versions of the court with many different tasks, ranging from various forms of detention supervision to the conduct of criminal trials.

This essay attempts to simplify these issues, at least a bit. It argues that the national security court debate—a debate in which I have participated1—is largely a canard. The fundamental issue is whether the United States should have a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial. If the Obama administration chooses to maintain a system of non-criminal military detention—and for reasons set forth below, I think it should—it will necessarily also choose to have a national security court. This is so because federal courts constituting a “national security court” must supervise non-criminal detention under the constitutional writ of habeas corpus and a likely statutory jurisdiction conferred by Congress. Viewed this way, we have had a centralized and thinly institutionalized national security court for years in the federal courts of the District of Columbia, which have been supervising Guantánamo Bay military detentions. The hard question about a national security court, once we accept the need for non-criminal military detention, is not whether it should exist but rather what its rules should be and, just as important, who should make these rules. In my view, Congress and the President, rather than the courts, must play the predominant role in crafting these rules. After explaining these points, I outline some of the issues and legal policy tradeoffs that the political branches should address, including whether such a court should be an independent institution akin to the Foreign Intelligence Surveillance Court and whether it should conduct criminal trials in addition to supervising detention.

Al-Adahi v. Obama; Sharifulla v. Bush; forthcoming scholarship

February 11, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 10, 2009)

Judge Kessler has issued an opinion denying requests by two GTMO detainees for injunctive relief relating to the manner in which the military carries out forced feeding required by the petitioners’ hunger strikes.  In short, Judge Kessler determined that federal courts lack jurisdiction over conditions-of-confinement claims thanks to the Military Commissions Act, and that this aspect of the MCA was unaffected by Boumediene.  She also determined that use of a restraint chair in the feeding process most likely would not constitute “deliberate indifference” violating the Eighth Amendment (interestingly, the court appears to assume, at least for the sake of argument, that detainees have Eighth Amendment rights; perhaps in my quick skim I missed the discussion of this issue), and that a prohibition on use of restraints would expose medical personnel to danger. The full opinion appears here. Read the rest of this entry »