This week, Congressmen Jerrold Nadler (D-NY), Tom McClintock (R-CA), and John Conyers, Jr. (D-MI), reintroduced the bipartisan State Secrets Protection Act to curb abuses of state secrets privilege while still 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.  In recent years, however, the privilege has been asserted much more frequently and more broadly than ever before in what may be an effort to shield evidence of government wrongdoing from the public rather than actually protecting state secrets.  

“Ultimately, the only defense we have of any right is the ability to enforce it in court,” said Congressman Jerrold Nadler.  “The state secrets privilege has been interpreted in such a way as to enable the government to kill any lawsuit simply by invoking the magical incantation ‘state secrets’.  Doing so is very dangerous to our democracy and eliminates any ability to hold the government accountable.  We must not allow the government to evade responsibility when it comes to issues like torture, warrantless wiretapping, or assassination-by-drone.  This bill will bring some balance to process and provide a needed check on abuse of power by the government.”

The bipartisan State Secrets 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.