EFF Senior Staff Attorney Kevin Bankston testified before the U.S. House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties today, using EFF's case against AT&T as an example of the misuse of the State Secrets Privilege by the Administration. The hearing was the Oversight Hearing on Reform of the State Secrets Privilege.

Bankston highlighted the fact that the Administration is attempting to use the state secrets privilege to shield itself and the telecommunications carriers from accountability for violating the rights of millions of Americans. He observed that the Administration is simultaneously claiming that no information can be presented to the court about the warrantless wiretapping without harming national security, while at the same time selectively providing information to Congress and the public when that information will further its political goals. Bankston said:

The Administration should not be allowed to share or withhold information for its own political advantage, or to avoid accountability.

Bankston also noted that the Foreign Intelligence Surveillance Act (FISA) already contained provisions allowing national security evidence to be handled within the case, in 50 U.S.C. 1806(f), and urged Congress to clarify that those procedures are appropriate in the NSA wiretapping cases.

The Committee also received a written statement from William Webster, who has served as a federal judge and as the Director of both the FBI and CIA. Judge Webster warned that the Executive Branch should not be given sole authority to determine whether evidence should be subject to the state secrets privilege. He said:

Granting executive branch officials unchecked discretion to determine whether evidence should be subject to the state secrets privilege provides too great a temptation for abuse. It makes much more sense to require the executive branch to submit such evidence to the courts for an independent assessment of whether the privilege should apply. Courts, not executive branch officials, should be entrusted to make these determinations and thereby preserve our constitutional system of checks and balances.

Also testifying were:

H. Thomas Wells, Jr.,
President-Elect of the American Bar Association

Judith Loether
Daughter of Victim in U.S. v. Reynolds

Hon. Patricia Wald
Retired Chief Judge
U.S. Court of Appeals for the D.C. Circuit

Patrick Philbin
Kirkland & Ellis

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