National Right to Counsel Committee Members Testify on Indigent Defense Crisis and Issue Urgent Call for Reforms

Senate Judiciary Committee also addresses abuse of privilege – holds markup of reform legislation

CONTACT: Matthew Allee,  (202) 580-6922 or

WASHINGTON – Two members of the Constitution Project’s Liberty and Security Committee will testify today before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties at a hearing on H.R. 984, the State Secret Protection Act. Asa Hutchinson, former member of Congress (R-AR), director of the Drug Enforcement Agency, and undersecretary for the Department of Homeland Security under President Bush, as well as Judge Patricia Wald, former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, will testify in support of reform of the state secrets privilege. The hearing, scheduled for 2 p.m., is being held to examine legislation introduced by Representatives Jerrold Nadler (D-NY) and Tom Petri (R-WI) that would overhaul the privilege while protecting sensitive national security information. The bill would restore the role of courts in evaluating evidence that the executive branch claims is subject to the state secrets privilege.

“Congressional action is needed to rein in unchecked claims of secrecy by the executive branch and restore our system of checks and balances,” said Asa Hutchinson, Constitution Project Liberty and Security Committee member. “My experience in both the executive and legislative branches has given me an appreciation for both the need to protect national security information and the importance of judicial oversight that will allow plaintiffs to have their day in court. Congress needs to act to restore a proper balance that will serve both these societal needs.”

Also today, the Senate Judiciary Committee is scheduled to markup the Senate’s version of the State Secrets Protection Act (S. 417), introduced by Senator Patrick Leahy (D-VT) during the last legislative session. Both bills would reform the state secrets privilege by restoring the role of courts in determining what evidence is sensitive national security information that must be protected from disclosure, while permitting cases challenging national security programs to go forward whenever possible.

“The state secrets privilege has become an immunity doctrine that the executive branch has used to shut down law suits it would rather not address,” said Sharon Bradford Franklin, Constitution Project Senior Counsel. “Both President Bush and President Obama have relied on this doctrine to prevent plaintiffs from having their day in court. Both bills would provide critical reform to the state secrets doctrine and allow court cases to move forward when possible, while protecting sensitive national security information that could be harmful if made public. By ensuring that our federal courts independently determine whether there is enough non-privileged evidence for a case to proceed, both bills would restore checks and balances and help prevent abuse.”

The Constitution Project sent a letter to the Senate Judiciary Committee yesterday, urging the committee to pass the state secrets legislation and oppose the many proposed amendments that would undermine the important reforms set forth in the bill. Click here to see a copy of the letter.

Clcik here to view a copy of Hutchinson’s testimony submitted to the subcommittee.

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