Feb. 4, 2008 · The House Subcommittee on the Constitution, Civil Rights, and Civil Liberties held an oversight hearing Jan. 29 to discuss reforming the state secrets privilege, which allows the government to prevent public disclosure of testimony and materials in litigation if such disclosure would reveal information damaging to national security.
Last month, Sen. Edward Kennedy (D-Mass.) and Arlen Specter (R-Pa.) introduced the State Secrets Protection Act (S. 2533), which would allow an independent judge to determine the validity of the government’s claim when the state secrets privilege is invoked. Rep. Jerrold Nadler (D-N.Y.), chairman of the House subcommittee, announced plans to introduce similar legislation shortly.
“When used properly, the state secrets privilege protects vital national security interests,” Nadler said. “However, in recent years, the state secrets privilege has been expanded to not only to produce arguably unfair results by preventing disclosure of specific items of evidence but also has been used to block litigation altogether and prevent any examination of challenged government activity.”
The central issue before the committee was whether the executive branch used this privilege to protect national security or to cover up potentially embarrassing or illegal activities.
Almost all the witnesses agreed that Congress ought to establish a code of standards and procedures to prevent cases from being dismissed based solely on the privilege.
“More searching judicial review, informed by evidence, would ensure that government assertions of necessity are truly warranted and not simply a means to avoid embarrassment or accountability,” explained Thomas Wells Jr., president-elect of the American Bar Association. In his testimony, he made specific recommendations that would streamline how alleged state secrets can be handled in litigation, without requiring a case to be dismissed.