Summer 2007

Section Proposes ABA Policy on State Secrets and Katrina

The Section will present two Reports with Recommendations to the ABA House of Delegates at the 2007 Annual Meeting. The first urges the United States Congress to create an independent, bipartisan commission to investigate the preparedness for, and the immediate and ongoing responses by, federal, state and local governments to Hurricane Katrina and to recommend appropriate measures designed to prevent or mitigate problems in responding to natural disasters in the future.

The proposed policy calls for legislation to establish a Katrina Commission to conduct the first comprehensive analysis by an independent, bipartisan entity the adequacy of the government’s response during and after the Hurricane, and the preventative steps that must be taken in the future. As the recommendation’s report states, “Only through a thorough, objective review of all the facets of the government’s response can the country hope to avoid repeating the mistakes of Katrina and, for the future, know the steps that must necessarily be taken in order to minimize the impact of another natural disaster like Katrina.”

A second Section-sponsored Report with Recommendation addresses the proper application of the state secrets privilege, which is a common law evidentiary privilege that shields sensitive national security information from disclosure in litigation. The central premise of the recommendation is that courts should make every effort to permit litigation implicating the privilege to proceed to the merits, instead of dismissing cases on the ground that national security information could be divulged. The recommendation sets forth various procedures that courts should follow to protect privileged information while permitting litigation to proceed to the merits, with nonprivileged information.

 

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