The state secrets privilege* is a common law privilege typically asserted by the government whenever the introduction of evidence into court would present a threat to national security. It is raised in cases involving a variety of issues, many of which involve fundamental rights and claims of government misconduct.
Traditionally, the state secrets privilege privilege has been asserted by the government in order to avoid being compelled to introduce evidence in court. Lately, however, the government has invoked the privilege seeking to have entire cases dismissed. In many instances, judges have dismissed cases without even reviewing the evidence at issue or determining whether a legal basis exists for privilege. In this way, the state secrets privilege has been perverted, and rather than serving as an evidentiary rule, it has become a justiciability rule -- something far different from its original purpose. The Judicial branch, moreover, has become incapacitated in its responsibility for providing checks and balances on the Executive branch.
In recent years, the state secrets privilege has been asserted by the government in an increasing number of cases. As reported by
Senator Kennedy, compared to previous administrations, the Bush administration has invoked the privilege in 25% more cases, and has used the privilege to seek dismissal of lawsuits in 90% more cases.
Many of these recent cases involve challenges to the government's war on terror practices. Since 2002, the state secrets privilege has been invoked in lawsuits involving wireless domestic surveillance (
ACLU v. NSA and
CCR v. Bush), unlawful surveillance activities by private communications companies (
Hepting v. AT&T), and the CIA's extraordinary rendition program (
El-Masri v. Tenet and
Arar v. Ashcroft), among many others. These lawsuits make all too evident the need for uniform rules outlining the use and disposition of state secrets claims.
In asserting the privilege, the government has sought to dismiss cases outright, without affording the courts an opportunity to determine whether a legal basis even exists for the privilege. Courts, moreover, are being asked to apply the privilege without any legislative guidance or clear case precedent. Legislative action that provides clear rules and promotes uniform application of the privilege is needed to guide courts in determining the merits of cases that present very important issues.
Congress is beginning to take notice of the need for legislative guidance on the judicial application of the state secrets privilege. Today, Senators Ted Kennedy (D-MA) and Arlen Specter (R-PA) introduced the
State Secrets Protection Act (SSPA), legislation aimed at reining in the U.S. government's increasingly frequent invocation of the state secrets privilege.
Rules are needed to provide clear standards for courts to use so that they can conduct discovery and examine all of the evidence
before determining whether a legal basis for the state secrets privilege exists. Without such rules, courts are likely to dismiss a case or claim based on the state secrets privilege before discovery is even conducted.
In cases where the evidence is determined to be privileged, courts should be able to require the government to provide a substantially equivalent alternative form of unclassified evidence, which solves two problems that frequently arise in state secrets cases: the government could retain sensitive and protected information, and opposing parties would have the opportunity to have their cases be reviewed on the merits.
Federal courts are well-equipped to handle assertions of the state secrets privilege. Judges are already entrusted with the handling of highly sensitive information under a number of federal statutes that permit federal courts to review secret evidence. Courts are competent to conduct
in camera review of the evidence before determining its admissibility.
In camera review has long been used by the courts to review protected or classified information while still respecting the government's need to limit exposure of such information to the public. There is no reason why this same form of review shouldn't be permitted in reviewing evidence purported to be protected by the state secrets privilege.
Legislative guidance on the courts' applicability of the state secrets privilege is needed to guide courts in applying the state secrets privilege. Not only would clear rules restore the balance between the judicial and political branches, but, just as importantly, they would permit individuals the opportunity to have their claims be fairly addressed in a court of law, thereby ensuring that justice is not denied to injured parties.
*
The state secrets privilege is commonly referred to in conjunction with the Supreme Court's articulation of the privilege in U.S. v. Reynolds, 345 U.S. 1 (1953). That case involved a negligence lawsuit filed by three widows whose husbands, employees of an Air Force contractor, had been killed in a plane crash while conducting tests on "secret electronic equipment." In their lawsuit against the government, the widows sought full disclosure of the Air Force's accident report. The government responded by invoking the state secrets privilege, claiming that disclosure of the report would threaten national security. The government refused even to disclose the report in camera.In ruling for the government, the Supreme Court -- without even looking at the report -- held that the government may invoke the privilege to withhold information, even when such information is vital to the opposing party's case. However, when the accident report was finally declassified and made public in 2000, the report contained not a shred of information pertaining to state secrets. What it did contain, however, was evidence of the government's negligence in failing to maintain the aircraft's airworthiness. 
