On April 24, 2008, the Senate Judiciary Committee, by a vote of 11-8, voted to approve 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, to prevent the government from using the privilege to withhold evidence that is not actually sensitive.
Critics have charged the Administration with abusing the use of the state secrets privilege in a broad range of national security litigation. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) said, “This administration continues to show unprecedented deference to secrecy rather than transparency. The State Secrets Protection Act clarifies that no one, not even a president, is above the law.”
The Judiciary Committee’s Ranking Republican Senator Arlen Specter (R-PA) joined the panel’s 10 Democrats in approving the bill. However, Attorney General Michael Mukasey has stated the administration would likely veto the bill and it is unlikely that the Democrats would have the necessary votes for a veto override.
Congress provided similar guidance for federal criminal cases when it enacted the Classified Information Procedures Act (CIPA) in 1980.