An Aug. 1 report by the Senate Judiciary Committee articulates the need for new legislation to limit the state secrets privilege. The report documents that the current administration has asserted the privilege "more frequently and broadly than before" and that reforms, such as the State Secrets Protection Act (S. 2533), are necessary to restore the proper balance between the right to an open and accountable government and the protection of legitimate state secrets. The report's dissenters — nearly all the Republicans on the committee — disagree with the report, arguing that existing procedures are sufficient.

Since Sept. 11, 2001, courts have frequently assumed that only an agency has sufficient knowledge and expertise to understand the implications of secret information. Hence, the courts have been extremely deferential to the executive branch's stated need to keep information from being made public or even examined by a court in lawsuits involving state secrets.

As reported in the previous Watcher, the State Secrets Protection Act, introduced by Sen. Ted Kennedy (D-MA), would reform the state secrets privilege by instituting a procedure whereby judges would have the authority to review the government's claim of a legitimate state secret. In civil cases, the court would review information that the government seeks to protect as well as evidence supporting the government's request for protection. The court would then make a decision assessing the likelihood that harm would result from evidence disclosure.

The Senate report raised several concerns that illuminate the need for a more restricted and defined privilege. "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."

Attorney General Michael Mukasey already threatened a likely Bush veto of S. 2533. In his March 31 letter to the Senate committee, Mukasey elaborated on the administration's opposition to increased court authority by questioning Congress's authority to alter the states secret privilege. He argued that the privilege derives from the Constitution, and therefore, Congress may not modify it through statutory law. Mukasey also argues the bill would shift powers to the courts in a manner that would unfairly and inappropriately unbalance the separation of powers between the branches. Mukasey concluded that "legislation raises serious constitutional questions concerning the ability of the Executive branch to protect national security information … and would effect a significant departure from decades of well-settled case law…" Accordingly, the administration would "strongly oppose" the bill.

After receiving the Mukasey letter, Kennedy remarked that his bill was "about safeguarding the public interest, shared by all Americans, in having an executive branch that complies with the law and the Constitution and in preserving the integrity of our courts."

The dissenting section of the Senate report, written by eight Republican senators, argued that current procedures rooted in case law are sufficient to deal with the state secrets privilege and that "the bill is unnecessary because judges already have the necessary tools and procedures to adjudicate state secrets cases."

However, the report also states that the U.S. Supreme Court has repeatedly declined to intervene in matters of the state secrets privilege, which has resulted in a situation where lower courts have been inconsistent in their rulings. In her February testimony on the act, Patricia Wald, a former judge for the U.S. Court of Appeals, argued that such legislation would "contribute to the uniformity of the privilege's application throughout the federal judiciary and to both the reality and the perception of fairness for deserving litigants with valid civil claims"

Sen. Arlen Specter (R-PA) was the lone Republican on the Judiciary Committee to support the report and express approval of S. 2533. Specter, the committee's ranking member, stated, "While national security must be protected, there must also be meaningful oversight by the courts and Congress to ensure the Executive branch does not misuse the privilege."

The Senate report noted that something larger was at stake than the failure to hear the claims of American citizens bringing cases against the government. "As use of the privilege has expanded and criticism has grown, public confidence has suffered. Mistrust of the privilege breeds cynicism and suspicion about the national security activities of the U.S. Government, and it causes Americans to lose respect for the notion of legitimate state secrets."