Congressman Jerrold Nadler (D-NY), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties today held a hearing to examine legislation that would reform the state secrets evidentiary privilege.  The state secrets privilege allows the government to prevent public disclosure of testimony and materials in litigation if the government asserts the disclosure would reveal information damaging to national security. Specifically, lawmakers reviewed H.R. 5607, the State Secret Protection Act of 2008, a bipartisan bill authored by Rep. Nadler.

“The Administration’s persistent attempts to withhold information has demonstrated the destructive impact that sweeping claims of privilege and secrecy have had on our nation,” said Rep. Nadler. “The courts have been reluctant to determine whether an assertion of a state secret privilege is being invoked properly. Presidents and other government officials have been known to lie, especially when it is in their interest to conceal something. Experience shows that we cannot take all of the White House’s assertions of the privilege at face value. We need to consider how we can reform the system to ensure that only truly sensitive -- and not just politically embarrassing -- information is kept secret.”

Rep. Nadler noted that the purpose of the state secrets privilege is to protect real 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. 

To address this issue, Rep. Nadler, along with Rep. Thomas Petri (R-WI), House Judiciary Chairman John Conyers, Jr. (D-MI), and Bill Delahunt (D-MA), introduced H.R. 5607, the State Secret Protection Act of 2008. Their bipartisan bill would ensure meaningful judicial determination of the state secrets privilege to curb abuse.

The bill 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, for evidence the judge finds is privileged, shall consider whether a non-privileged substitute can be created that would prevent an unnecessary dismissal of the claims.  The sponsors noted that through reasonable and uniform procedures and standards, their bill would strengthen national security and the rule of law, and would help restore checks and balances.