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WASHINGTON � As a government contracts lawyer, David Kasanow of McKenna Long & Aldridge has witnessed the federal government’s use of the state secrets privilege operate as both a sword and a shield in litigation involving his clients. But, he says, there is still a need for a “legislative fix” to improve how courts deal with the privilege today. The government has wielded the privilege to cut off contractors’ claims for millions of dollars owed by saying that proving those claims requires disclosure of information that would endanger national security. And, when contractors have been sued by other parties for injuries from work done for the government, the privilege has blocked lawsuits in cases in which the government claims that information that would be disclosed would threaten national security. “The only reasoned position that I can take and represent the best interests of all of my clients is to say the procedural protections associated with the state secrets privilege � the right of judges to review documents and the ability of parties to participate � need to be enhanced from the way they currently are interpreted,” said Kasanow. Kasanow’s firm, and partner Dan Jarcho in particular, have been working on Capitol Hill to find the “legislative fix” that strikes the proper balance between protecting national security interests and the interests of those with legitimate claims against the government. Jarcho, who heads the firm’s federal regulatory litigation team, is co-chair of the American Bar Association’s coordinating committee on national security and civil liberties, which has made formal recommendations for change. Vehicles for change Two key vehicles for change � bills S. 2533 and H.R. 5607 � recently were introduced in Congress, the product of public hearings and input by academics, judges, litigators, civil liberties groups and firms like McKenna Long. They attempt to deal with what proponents claim are too many judges failing to look closely behind the government’s assertion of the privilege and dismissing litigation at the outset. The congressional effort has been triggered not by what Kasanow describes as the “more mundane type” of state secrets litigation that he handles � tort and government contract cases � but by the very controversial litigation involving the government’s “extraordinary rendition” of terrorism suspects to countries using torture in interrogations, and the domestic wiretapping program by the National Security Agency. The issue is “so much broader” than those cases, said Mark Zaid of Washington, who has handled many state secrets cases involving government whistleblowers, undercover agents and others. Zaid voiced pessimism about a legislative fix, particularly if it becomes bogged down in the debate about immunity for phone companies involved in the wiretapping program. But Michael German, a staff attorney with the American Civil Liberties Union, calling himself “the eternal optimist,” noted both bills have bipartisan sponsorship, focus on procedural changes and are scheduled for committee markups in early April. The bills, according to the sponsors, would return the privilege to its common law roots as an evidentiary privilege by mandating steps a federal judge must take when the privilege is asserted in a case. For example, the bills state that judges may not dismiss a lawsuit on state secrets grounds at the pleadings stage, only after the parties have presented their evidence and the court has reviewed it. Each time the government claims the privilege, it would be required to submit an affidavit explaining its claim and the court would be required to make a privilege determination for each piece of evidence. If the court finds that evidence is privileged, it must order the government, when possible, to create a nonprivileged substitute for the evidence, such as an unclassified summary. If the government refuses to provide a nonprivileged substitute, the court is to resolve the issue of fact or law against the government. “By creating that structure, it would make it very difficult for a court to find that the litigation simply can’t move forward,” said German, whose organization recently had three major lawsuits dismissed on state secrets grounds before evidence was requested, while a fourth case is pending. Professor Robert Chesney of Wake Forest University School of Law, whose research has rebutted claims that the Bush administration has used the state secrets privilege more broadly than prior administrations, describes himself as “obviously not an ardent reformer.” But judges’ handling of the privilege, he said, could be improved. “This is an area in which we want to move carefully. There are tremendously important stakes here.” Chesney said the bills improve on the status quo by making more adversarial the determination of whether the privilege attaches, instead of involving only the judge and the government in an ex parte proceeding. The bills would permit the judge to appoint a prescreened type of guardian ad litem to represent the opposing party’s interests, which Chesney supports, or allow the other party’s attorneys to participate if they have security clearances, which he opposes. And if a judge believes that he or she doesn’t have enough expertise, the court may appoint a special master to assist with the initial assessment of whether the privilege should attach, “another process reform with a fair amount of consensus,” said Chesney. But Chesney is critical of the House bill because, he said, the bill states that the judge should give no more deference to the government’s argument than it would give to any other expert in any other context. The Senate bill, in contrast, does not tell the judge how much deference to give, he said. A former federal appellate judge, Patricia Wald, told the Senate Judiciary Committee in January that “the time is ripe” for legislation because courts, litigants and their attorneys are confused as to how to proceed when the privilege is claimed. The House and Senate bills, according to Kasanow, Chesney and others, are seen as good-faith, bipartisan efforts to create a balanced framework. “Are these particular bills going to become law?” asked Chesney. “It’s inconceivable because of [President] Bush. This is setting down markers for what will happen next.”

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