Reps. Nadler, Petri, and Conyers Reintroduce the Bipartisan State Secrets Protection Act

Oct 23, 2013 Issues: Civil Liberties, Civil Rights

WASHINGTON, D.C. – Today, Congressmembers Jerrold Nadler (D-NY), the Ranking Democrat on the Judiciary Subcommittee on the Constitution and Civil Justice, Tom Petri (R-WI), and John Conyers, Jr. (D-MI), the Ranking Democrat of the Judiciary Committee, reintroduced legislation that would ensure meaningful judicial determination of the state secrets privilege. The bipartisan State Secrets Protection Act 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. However, if it is not properly policed by the courts, it can be abused to conceal embarrassing or unlawful conduct whose disclosure poses no genuine threat to national security.

“In recent years, the executive branch has used the state secret privilege aggressively, often seeking outright dismissal of entire cases based on the claim that the very subject matter of a case is too secret to be heard by a court. This troubling trend cannot continue.  The basic rights and freedoms that we cherish as a nation are meaningless without the means to enforce them,” 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 seek protection from the courts is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy.”

“Especially nowadays where recent revelations about intrusions on personal privacy have caused a growing distrust in government, it’s important that the law is clear and the executive branch is held accountable.  I’m sure there are cases where national security is truly at risk, and that information must be protected,” said Rep. Petri. “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 similar procedure for criminal cases, and we need one for civil cases as well.”

“In matters of national security, the federal government has a duty to protect sensitive information from being improperly disclosed. However, there have been incidents in the past where the federal government abused the state secrets privilege to protect information that, while posing no true harm to national security, proved embarrassing to the government. As recent revelations regarding the executive branch’s sweeping surveillance programs have confirmed, robust oversight and meaningful checks on executive branch authorities are critical to safeguarding our civil rights,” said Rep. Conyers. “This legislation, which provides long overdue guidance to the courts on how to handle executive branch assertions of secrecy in civil litigation, will protect citizens’ civil liberties 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 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.