On Nov. 5, the House Judiciary Committee began markups on a bill that would codify standards for when and how the executive branch may apply the state secrets privilege in civil litigation. Although the Obama administration has promised certain limitations on its own use of the privilege, civil liberties and open government groups continue to call for legislation to address the privilege. Ultimately, the committee approved the bill on an 18-12 vote and referred the legislation to the full House.

The State Secrets Protection Act of 2009 (H.R. 984) was introduced by Rep. Jerrold Nadler (D-NY). The purpose of the bill is to allow executive branch secrecy claims to be examined in a secure manner. The markup was the first time the committee had addressed the issue since the bill was referred to it in June.

The state secrets privilege was created by the U.S. Supreme Court’s decision in United States v. Reynolds (1953). Historically, the privilege has typically been invoked to withhold specific pieces of evidence from being reviewed by a judge for possible introduction at trial. Officials in the Bush administration interpreted the privilege more broadly and repeatedly used it to pressure courts to dismiss entire cases, arguing that any and all records related to the government's defense would be state secrets. Despite the privilege’s court origins, few judges have been willing to question or limit its use. Critics contend that the privilege has been misused to cover up violations of U.S. and international law, such as wiretapping programs, torture, and rendition. In addition, the public learned that the classified material in the original Reynolds case, once declassified in 2000, actually contained no secret information.

Judicial Review

Nadler stated that the bill was an effort to restore “appropriate balance between our three branches of government.” The effort to ensure this balance through judicial review is a key part of Nadler’s legislation.

The bill would prevent the outright dismissal of an entire lawsuit without an independent review of the evidence deemed privileged. The legislation would require the White House to submit the information it deems a state secret to a federal judge, who would conduct an independent review of the material. Further, if the court believes the executive branch claim is legitimate, then the court can require a non-privileged substitute of the evidence to be created, if possible. Refusal to submit evidence would result in a finding against the government.

Several witnesses, including federal judges and a former Central Intelligence Agency director, submitted testimony in June to the Subcommittee on Constitution, Civil Rights, and Civil Liberties that the courts have proven themselves competent to safeguard sensitive information while administering justice. Congress has provided guidance to the judiciary in the past for handling sensitive information in the Freedom of Information Act and the Classified Information Procedures Act.

During the markup process, judicial review turned out to be a point of contention. Rep. Adam Schiff (D-CA) put forward an amendment that would have required courts to give “due deference” to the government’s assertion that disclosure would harm national security. This amendment would essentially codify the existing standard most commonly applied by the judicial branch, which usually accepts the state secrets claim without review of evidence. The amendment failed, however, on a vote of 12-17.

The Obama administration issued new policies and procedures for invoking the privilege in late September. While the administration’s policy marked the first time a president has publicly clarified the Supreme Court decision in Reynolds and set certain boundaries, several groups have indicated concern that the administration left itself broad room to apply the privilege without sufficient oversight. Although Attorney General Eric Holder’s press release on the policy discussed judicial review, the policy itself failed to address a court’s ability to review evidence in a state secrets assertion. Particularly troubled by the administration’s continued application of the privilege, the American Civil Liberties Union stated, “On paper, this is a step forward. In court however, the Obama administration continues to defend a broader view of state secrets put forward by the Bush administration.”

Legislation on the state secrets privilege is currently pending in the Senate, as well. The Senate bill (S. 417) directs courts to weigh executive branch state secrets claims over the claims of the plaintiff. The House bill, however, takes an approach aimed at retroactively narrowing the application of the privilege. The House legislation seeks to reopen cases, as far back as 2002, in which the privilege was claimed.

Regardless of what promises or policies the Obama administration creates, legislation is key to preserving changes that apply to future administrations and enforcing them with proper oversight.