Pressure Grows to Limit the State Secrets Privilege

A rising tide of criticism of the use of the state secrets privilege to derail litigation against the government has yielded new legislation introduced in the Senate to define the privilege and to limit its use.

The state secrets privilege has been invoked with growing frequency to deflect claims of unlawful domestic surveillance, detention, and torture as well as other more mundane complaints, on grounds that adjudicating them would cause unacceptable damage to national security.

But a new bill sponsored by Senators Edward M. Kennedy (D-MA) and Arlen Specter (R-PA) would provide a mechanism for protecting legitimate secrets while also permitting litigation to proceed.

“The [proposed] Act ensures that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act,” according to a description issued by Senator Kennedy’s office. “For example, a court may limit a party’s access to hearings, court filings, and affidavits, or require counsel to have appropriate security clearances.”

And crucially, “The Act clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege.”

Senator Kennedy introduced the State Secrets Protection Act (S. 2533) on January 22.

The personal story behind the controversial 1953 Supreme Court ruling that established the state secrets privilege is featured, along with other aspects of government secrecy, in the new film “Secrecy” by Peter Galison and Robb Moss.

The film premiered this past week at the Sundance Film Festival, where it was reportedly well-received. “The question of how much we should rely on methods inconsistent with our values is intelligently and elegantly handled,” wrote Los Angeles Times film reviewer Kenneth Turan.