Confronting the State Secrets Privilege

At a House Judiciary Subcommittee hearing today, witnesses discussed the feasibility and advisability of legislating reforms to the state secrets privilege.

The state secrets privilege has been used by the executive branch to block discovery in civil litigation when the government believes that there is an unacceptable risk of disclosure of sensitive national security secrets. But on several occasions, the mere assertion of the privilege has led to termination of the lawsuit. It has effectively short-circuited the adjudication of claims against the government involving domestic surveillance, unlawful detention, and torture.

“I do believe thoughtful legislation is needed to insure that maximum and uniform efforts are made to strike the right balance between national security needs and fair judicial proceedings,” said the Hon. Patricia M. Wald, the retired chief judge of the DC Circuit Court of Appeals in testimony today.

Legislative intervention was also endorsed by H. Thomas Wells, Jr. (pdf), the president-elect of the American Bar Association, and by Kevin Bankston (pdf) of the Electronic Frontier Foundation, whose lawsuit on warrantless domestic surveillance has prompted state secrets claims by the government.

Patrick Philbin, a former deputy attorney general, argued (pdf) that any legislative proposal to permit judges to overrule the executive branch regarding the sensitivity of particular information “would be a mistake.”

The prepared statements from today’s hearing are posted here.

Last week, Senators Kennedy, Specter and Leahy introduced “The State Secrets Protection Act.” The text of that legislation is now available here.

No Responses to “Confronting the State Secrets Privilege”

  1. Brad January 30, 2008 at 9:49 AM #

    I am one of very many people who are against government secrecy. Our country apparently uses this “secrecy” to protect people from panic in risky situations. The truth is that our government makes mistakes and frankly, they’re sometimes in the wrong. Many unnatural and unlawful acts and coverups happen within our government. It won’t be long till you see for yourselves…

  2. Jackie the Dallas Handyman May 12, 2011 at 2:13 AM #

    Keeping the secrets of the State has its pros and cons just like any other dilemma. Although, there’s a rule of thumb that the State should be transparent to its people, they are also faced with challenges that might hurt the image of the State if they divulge it to the public. A simple example would be the secrecy of the state of health of their President. Ever wonder how rarely it is for a country to blurt out to the public that they’re President cannot attend a certain event because he/she is suffering from a certain health condition (may be it mild or severe)? The reason behind it is that, the State would want to preserve the strong (maybe close to invincible) image of their Public Officers only because they represent the status of the State itself. At least how I see it, the dilemma can be solved by properly classifying the information that goes to the public and then keeping the rest for further evaluation. The State can then tag it as confidential only after making the public understand that doing so does not overlap their rights as a citizen.