Senate Report Scrutinizes the State Secrets Privilege

A new report from the Senate Judiciary Committee examines the use of the state secrets privilege by the executive branch and describes the intent of new legislation to strengthen judicial review of its use in civil litigation.

The 53 page report summarizes the latest legal scholarship on the state secrets privilege, as well as the controversy that has surrounded it.

“In recent years, the executive branch has asserted the privilege more frequently and broadly than before, typically to seek dismissal of lawsuits at the pleadings stage. Facing allegations of unlawful Government conduct ranging from domestic warrantless surveillance, to employment discrimination, to retaliation against whistleblowers, to torture and ‘extraordinary rendition,’ the Bush-Cheney administration has invoked the privilege in an effort to shut down civil suits against both Government officials and private parties. Courts have largely acquiesced,” the report states.

“While there is some debate over the extent to which this represents a quantitative or qualitative break from past practice, ‘[w]hat is undebatable … is that the privilege is currently being invoked as grounds for dismissal of entire categories of cases challenging the constitutionality of Government action,’ and that a strong public perception has emerged that sees the privilege as a tool for Executive abuse.”

“In response to the growing concerns about the state secrets privilege, Senator Kennedy, Senator Specter, and Senator Leahy introduced the State Secrets Protection Act to provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in Government and the courts.”

The new report includes dissenting views from several Republican members of the Judiciary Committee, who argue that the existing arrangements already strike the “right balance between openness, justice and national security.” See “State Secrets Protection Act,” Senate Judiciary Committee Report 110-442, August 1.

Another new report from the Senate Judiciary Committee addresses court-ordered secrecy, and would limit judicial authority to seal court records pertaining to public health and safety. The report describes pending legislation that “requires judges to consider the public’s interest in disclosure of health and safety information before issuing a protective order or an order to seal court records or a settlement agreement.” See “Sunshine in Litigation Act,” Senate Judiciary Committee Report 110-439, August 1.

No Responses to “Senate Report Scrutinizes the State Secrets Privilege”

  1. Warren Craft August 16, 2008 at 10:13 PM #

    So, Steven — my brief look through the report suggests that the proposed legislation would indeed be beneficial. Is that your take on this too? Specter notes that the legislation would include “a codified test for evaluating state secrets that requires courts to review the evidence in camera.” Bizarre that this has not been common practice to this point, and ironic that the US v Reynolds case eventually proved to involve serious misleading of the court by the government!