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.
This rule gives agencies significantly more authority over certain career policy roles. Whether that authority improves accountability or creates new risks depends almost entirely on how agencies interrupt and apply it.
Our environmental system was built for 1970s-era pollution control, but today it needs stable, integrated, multi-level governance that can make tradeoffs, share and use evidence, and deliver infrastructure while demonstrating that improved trust and participation are essential to future progress.
Durable and legitimate climate action requires a government capable of clearly weighting, explaining, and managing cost tradeoffs to the widest away of audiences, which in turn requires strong technocratic competency.
FAS is launching the Center for Regulatory Ingenuity (CRI) to build a new, transpartisan vision of government that works – that has the capacity to achieve ambitious goals while adeptly responding to people’s basic needs.