What is the purpose of a state secrets privilege act?

A State Secrets Privilege Act will restore transparency and accountability.   

• In recent high-profile cases, the executive branch has invoked a doctrine known as the state secrets privilege to block legal challenges to its NSA eavesdropping and extraordinary rendition programs.  Using the state secrets privilege, the executive branch has claimed that the disclosure of certain evidence in court, or the litigation over certain issues, may damage national security. 
• Although Congress has put in place a clear procedure to govern secret evidence in criminal cases in the Classified Information Procedures Act (CIPA), Congress has not yet provided guidance on how to use secret evidence in civil cases. 
• Lacking guidance, some federal judges have viewed the executive branch’s state secrets privilege claim as absolute.  By declining to review key pieces of evidence themselves, or by dismissing lawsuits outright without considering any evidence at all, these judges have given the executive branch the ability to violate legal and constitutional rights without any accountability or oversight. 
• These judicial decisions have left innocent victims unable to obtain justice in any court, and, more importantly, eliminated constitutional checks on executive power.

 

Why is now the right time for a state secrets privilege act?

Recent developments in the courts require that Congress act now to reform the state secrets privilege. 

• Last month, the Supreme Court denied certiorari in the case of  El-Masri v. Tenet.  Khalid El-Masri sued the government claiming that he had been illegally detained and tortured as part of the CIA’s extraordinary rendition program, based on a case of mistaken identity.  Even though extensive evidence regarding El-Masri’s fate was available in the public record, the courts accepted at face value the government’s claim that litigating the case would require disclosure of state secrets evidence and dismissed the case without considering whether the case could be litigated on other evidence or, in fact, any evidence at all. 
• A similar fate has met a Canadian citizen, Maher Arar, who was detained by the government while changing planes in the United States and sent to Syria, where he was tortured.  A district judge dismissed Arar’s suit against the government based on the executive’s invocation of the state secrets privilege, again without considering any evidence in the case.
• The Administration has used the state secrets privilege to block judicial or public scrutiny of its NSA domestic eavesdropping program.  In both suits against the government, such as ACLU v. NSA, and suits against the telecom providers, such as Hepting v. AT&T Corp., the Administration has asked courts to dismiss the case without looking at any evidence.
• Recent reports have documented that in the aftermath of 9/11, this Administration has used the state secrets privilege far more than previous governments.  According to one study, “The Bush Administration has raised the privilege in twenty-eight percent more cases per year than in the previous decade, and has sought dismissal in ninety-two percent more cases per year than in the previous decade.”  See Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1939 (2007); see also William G. Weaver & Robert M. Pallitto, State-secrets and Executive Power, 120 Pol. Sci. Q. 85, 100 (2005); Scott Shane, Invoking Secrets Privilege Becomes a More Popular Legal Tactic by U.S., N.Y. Times, Jun. 4, 2006.
• Finally, recently declassified information about the Supreme Court’s seminal case on the state secrets privilege, United States v. Reynolds (1953), provides an example of abuse of the privilege.  In that case, three widows sued the government over the deaths of their husbands in a B-29 crash, and asked for the accident report and statements from surviving crew members.  The Supreme Court accepted the Executive Branch’s assertion that the report contained references to secret electronic equipment, and so refused to allow it to be used in evidence, without ever looking at the report itself.  The report was declassified in the 1990s, and it contains no discussion at all of any secret equipment.  See Louis Fisher, In the Name of National Security (2006).  

 Does Congress have the constitutional authority to enact this legislation?

Yes.  Congress has both the constitutional authority and responsibility to regulate the state secrets privilege.  

• The Constitution explicitly grants Congress the power to enact “Regulations” concerning the jurisdiction of federal courts.  This constitutional power gives Congress authority to reform the state secrets privilege, and indeed, Congress regularly reviews and approves rules of procedure and evidence for the federal courts.  As the Supreme Court has stated, “Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution.”  Dickerson v. United States, 530 U.S. 428, 437 (2000).  
• Congress has a particular responsibility to act because the Executive Branch’s overuse of the state secrets privilege undermines Congress’ constitutional authority to determine the jurisdiction of the federal courts, by removing from the courts cases in which Congress has provided jurisdiction.
• Congress has a history of acting to establish and regulate judicial proceedings related to classified and sensitive national security information.  Congress has passed amendments to FOIA and created the FISA Court, and enacted the Classified Information Procedures Act to regulate the use of classified information in criminal trials.  Because of these laws, federal judges regularly review and handle highly classified evidence in many types of cases, but civil litigants have been left behind. 
• A range of scholars and institutions have recognized the need for reform of the state secrets privilege, and have asked Congress to enact legislation.  This Act draws from proposals offered by institutions including the Georgetown Center on National Security and the Law, the American Bar Association, and the Constitution Project.

How will a State Secrets Privilege Act help Americans get their cases heard in court?

A State Secrets Privilege Act should allow courts to provide justice to litigants in a number of ways.

• It should prohibit the Administration’s practice of seeking to dismiss a lawsuit altogether based on the state secrets privilege, even before the court considers any evidence. 
• At the same time, it should address assertions commonly made by the Administration for why certain cases cannot be litigated.  An Act should allow the government to plead “state secrets” in response to items in a complaint, if the mere act of admitting or denying those claims would divulge a state secret.  In keeping with current practice, an Act should also allow the government to intervene in a case to which it is not a party in order to protect state secrets.
• In addition, an Act should protect innocent parties by allowing them to use state secrets evidence to establish a valid, meritorious defense in secure in camera proceedings.  On the other hand, it should prevent the government from using the state secrets privilege merely to cover up facts that would support a judgment for the opposing party in a lawsuit.

How will a State Secrets Privilege Act hold the Executive Branch accountable and make its actions transparent?

A State Secrets Privilege Act should provide detailed judicial oversight for executive claims of privilege.

• Under an Act, the courts, and not the executive branch, should determine whether to protect information on the basis of the state secrets privilege. 
• Each time the government invokes the privilege, it should have to submit an affidavit explaining why it is claiming the privilege, signed by the head of the agency claiming the privilege.  If the court agrees that items of evidence are privileged, the court must, if possible, order the government to craft unclassified alternatives to the evidence.  If the court determines that the evidence is not protected by the state secrets privilege, it must be disclosed to the other parties and available as evidence in the litigation.
• In addition to providing careful judicial oversight, an Act should require the Attorney General to report regularly to the Congressional intelligence committees on the use of the state secrets privilege.  These reports must include the detailed affidavits that the Executive is required to file with the court justifying its claim of privilege.

 

How will a State Secrets Privilege Act protect secret information that shouldn't be disclosed?

A State Secrets Privilege Act should include a number of strong safeguards that protect all state secrets against disclosure.

• An Act should define state secrets as “any information that, if disclosed, would be likely to cause significant harm to the national defense or foreign relations of the United States.”  An Act should ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in CIPA and FOIA. 
• An Act should require that a court review asserted state secrets evidence in a secure proceeding.  The rules laid out in the Act should be flexible, allowing the court to grant the government greater secrecy, if the court deems it necessary for national security.  In extreme circumstances, the court should be able to allow the government not to produce secret information, if producing the evidence would cause a grave danger to national security.  The court should also be able to, in the interest of justice and national security, limit a party’s access to hearings, court filings, or affidavits, or require that lawyers have appropriate security clearances.
• The court should make a privilege determination for each piece of evidence; if it contains a state secret, or cannot be effectively segregated from other evidence that contains a state secret, then the evidence is privileged and may not be released.  If the court finds that the evidence is privileged, then it must try to craft a non-privileged alternative, such as a summary, a redacted version, a statement admitting the facts that the privileged evidence would tend to prove, or another alternative as crafted by the court. 
• To prevent a flawed judicial ruling from erroneously authorizing the release of state secrets, any order that a court issues under an Act should be subject to expedited interlocutory appeal.

How would a State Secrets Privilege Act relate to the "Totten rule"?

• The Totten rule is a judicial doctrine about justiciability -- about what cases courts can hear in the first place.  It is named after Totten v. United States, 92 U.S. 105 (1875), which held that cases involving unacknowledged espionage agreements cannot be litigated because, as a matter of contract law, the very existence of the agreement is secret.  This rule was recently reaffirmed in Tenet v. Doe, 544 U.S. 1 (2005).  This distinct from the state secrets privilege, which is an evidentiary privilege that protects certain pieces of evidence from disclosure.  Nonetheless, some courts have conflated the two distinct doctrines.  A State Secrets Privilege Act should not explicitly address the Totten rule, but should eliminate confusion of the issue by providing a clear process for handling state secrets cases.