Bill to Clarify Use of State Secrets Privilege Introduced

Recently, Senators Edward Kennedy (D-MA) and Arlen Specter (R-PA) introduced S. 2533, the “State Secrets Protection Act.” The state secrets privilege allows the executive branch to block discovery in civil litigation when the government believes that there is an unacceptable risk of disclosure of sensitive national security secrets. The intent of the legislation is to provide guidance to federal courts in handling assertions of the privilege in civil cases, and to prevent the government from using the privilege to withhold evidence that is not actually sensitive in nature.

Congress provided similar guidance for federal criminal cases when it enacted the Classified Information Procedures Act (CIPA) in 1980. The Senate Judiciary Committee has scheduled a hearing on the state secrets privilege for February 13.

In his floor statement introducing the bill, Senator Kennedy asserted that the state secrets privilege has been used in recent years to dismiss cases on issues ranging from torture, rendition and warrantless wiretapping. Kennedy also cited statistics that the Bush administration had raised the privilege in over 25 percent more cases than previous administrations and sought dismissal in 90 percent more cases. Senator Specter claimed that there has been inconsistent application of the privilege among federal district and appellate courts underscoring the need for clear and consistent standards in handling assertions of the privilege.

The House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Civil Liberties held a hearing on the state secrets privilege on January 29.

Thomas Wells, representing the American Bar Association, stated his organization supports enactment of federal legislation clarifying procedures and standards for the treatment of information alleged to be subject to the state secrets privilege.

“I do believe thoughtful legislation is needed to insure that maximum and uniform efforts are made to strike the right balance between national security needs and fair judicial proceedings,” said the Honorable Patricia M. Wald, the retired Chief Judge of the U.S. Court of Appeals for District of Columbia Circuit.