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.