Experts collaborated and debated “the state of the state secrets privilege” at a forum hosted by American University Washington College of Law on Wednesday.
The school’s Collaboration on Government Secrecy brought together scholars, government specialists and policy practitioners to discuss the history of the privilege, its place in the Obama administration, how it would ideally be reformed and how it is likely to be reformed.
New York Congressman Jerrold Nadler, who chairs the House Judiciary Committee Subcommittee on the Constitution, Civil Rights and Civil Liberties, kicked off the day by stressing the need to curtail the privilege. Nadler emphasized that the executive cannot be its own judge and noted the need to pass legislation paring back the privilege.
The state secrets privilege requires courts to dismiss lawsuits if the government shows that trying the case would reveal state secrets. Once rarely invoked, the Bush administration created controversy by asserting the privilege in a wide range of cases, from warrantless wiretapping and torture to records of lobbyist Jack Abramoff’s visits to the White House. The Obama Justice Department likewise drew criticism by continuing to assert the privilege, but announced in September that it would limit use of the privilege and narrow its scope.
Sharon Bradford Franklin, senior counsel for the Constitution Project, underscored the need for an independent check on the executive branch.
Legislation to reform the privilege has been introduced in both houses of Congress. Panelists agreed that the bill is likely to move forward only if attached to other legislation. Obama has remained silent on whether or not he supports the bill; President George W. Bush felt such legislation was outside the scope of Congressional authority.
Danielle Brian of the Project on Government Oversight said this is a "unique opportunity" to finally pass legislation on the privilege. "We all need to make this a priority," she said.
The definition of what national security information would appropriately be covered by the privilege has been stretched and construed too broadly, said Liza Goitein, the director of the Liberty and National Security Project at the Brennan Center for Justice. "I’m concerned that now ‘national security’ means any harm and vast illegal government activity can be concealed."
Goitein argued a balancing test weighing whether information is properly protecting a government secret against the public’s interest in the information is appropriate in light of the broad definition.