Today, Congressman Jerrold Nadler (D-NY), the top Democrat on the Judiciary Subcommittee on the Constitution, and lead sponsor of the State Secret Protection Act, reiterated the pressing need for reform of the state secret privilege in light of a case brought before the United States Supreme Court earlier this week.

Nadler issued the following statement:

“The state secret doctrine originated in the 1953 case of U.S. v. Reynolds, where the government asserted a fraudulent secrecy claim to avoid disclosing an accident report that proved the government’s negligence in a plane crash that killed three civilian workers.  Since 9/11, the state secret doctrine has been used with alarming frequency to dismiss claims challenging the U.S. government’s programs of warrantless spying, rendition, and torture.  While there is no doubt that legitimate secrets – those whose public disclosure would truly harm national security – must be protected, reform of the privilege is long overdue.

“The case heard this week by the Supreme Court raises important questions about the denial of due process in civil cases where the government has raised the privilege.  The case will not provide the full guidance that is needed because no one in this case – where the government has charged two major contractors with defaulting on a substantial military contract while simultaneously raising the state secret privilege to prevent their defense – has questioned the standards or processes that should be used to ensure meaningful judicial review of state secret claims.  Congress provided such guidance in criminal cases more than 30 years ago that safeguards legitimate state secrets while ensuring basic due process protections for defendants.  There simply is no excuse for our failure to do the same for civil litigants.  Given how commonplace use of the privilege has now become, Congress must not delay action, which is why I plan to re-introduce my State Secret Protection Act.”

Nadler’s bipartisan State Secret Protection Act, which he will soon introduce in the 112th Congress, would curb abuse of the privilege while providing protection for valid state secrets.  The legislation 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.”

The state secret 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.