Today, Congressmembers Jerrold Nadler (D-NY), the Ranking Democrat on the Judiciary Subcommittee on the Constitution, Tom Petri (R-WI), John Conyers, Jr. (D-MI), the Ranking Democrat of the Judiciary Committee, and Zoe Lofgren (D-CA) reintroduced legislation that would ensure meaningful judicial determination of the state secrets privilege.  The bipartisan State Secret Protection Act of 2012 would curb abuse of the privilege while providing protection for valid state secrets.

The state secrets privilege allows the government to withhold evidence in litigation if its disclosure would harm national security.  The purpose of the privilege is to protect legitimate state secrets; but, if not properly policed, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security.

“The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation,” said Rep. Nadler.  “This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases.  The right to have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy.”

Rep. Petri commented, “Imagine the government seriously harms you but says you can’t see the evidence for reasons of national security. I’m sure there are cases where national security is truly at risk, and that information must be protected. But we shouldn’t have to simply take the executive branch’s word for it. Shouldn’t an independent, responsible party apart from the executive branch review the material to determine when and how national security really necessitates restricting the use of sensitive material? The answer is, quite obviously, yes. We have a procedure for criminal cases, and we need one for civil cases as well.”

“No one denies that the federal government has a legitimate interest in protecting sensitive information whose disclosure could harm national security,” said Rep. Conyers.  “But past cases have revealed instances where the federal government abused the state secrets privilege to prevent embarrassing or damaging facts from coming to light.  This bill will protect citizens’ civil rights from further abuse while maintaining the legitimate exercise of the state secrets privilege.”               

In 1953, the widows of three civilian engineers filed a civil case against the government for negligence in a military airplane crash that killed their husbands.  The government, citing national security concerns, refused to provide an accident report of the crash.  The Supreme Court, in U.S. v. Reynolds, upheld that refusal, without ever reviewing the accident report itself.  When the report was discovered through an internet search 50 years later, it did not reveal any secret military information but, instead, showed the government’s negligence in the crash.

More recently, the executive branch’s increased use of the privilege to dismiss cases challenging the most troubling aspects of the war on terror – including rendition, torture, warrantless wiretapping, and the lethal targeting of U.S. citizens – has highlighted the need to ensure that judges do not simply accept a government’s secrecy claim at face value.  Regardless of the administration in office, there is a continued need for clear guidance on proper court handling of executive branch secrecy claims.

The bipartisan State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence.  Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if “public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States.”

Under the bill, when this standard is met, a judge must protect the evidence from harmful disclosure, and shall consider whether a non-privileged substitute can be created that would prevent an unnecessary dismissal of the claims.  Through these reasonable and uniform procedures and standards, the bill would strengthen national security and the rule of law, and would help restore checks and balances.

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