A bill “to provide safe, fair, and responsible procedures and standards for resolving claims of state secrets privilege” was introduced in the House of Representatives this week by Rep. Jerrold Nadler and several Democratic colleagues.
Essentially, the bill (HR 5956) would require courts to render an independent assessment of the validity of a government assertion of the state secrets privilege, rather than simply deferring to the claim. When the privilege is properly asserted, courts would be required to consider the feasibility of introducing non-privileged substitutes for privileged evidence.
Such measures would make it more likely that cases could proceed to adjudication even when discrete pieces of evidence are found to be privileged.
“The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation,” said Rep. Nadler in a news release. “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 have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy.”