During the week of Feb. 9, the Obama administration invoked the state secrets privilege in a sensitive legal case. The decision has led some groups to question if President Barack Obama is breaking from the Bush administration's interrogation and intelligence policies as promised, or if he intends to continue existing practices. Meanwhile, both houses of Congress are considering legislation (H.R. 984 and S. 417) to narrow the interpretation of the largely undefined privilege created by case law.

Mohamed et al. v. Jeppesen Dataplan, Inc. was a case dismissed by the U.S. Court of Appeals for the Ninth Circuit on Feb. 9. The case was originally filed in May 2007 when the American Civil Liberties Union (ACLU) sued a Boeing subsidiary, Jeppesen Dataplan, for providing logistical support to the Central Intelligence Agency (CIA) when the agency forcibly disappeared five of the ACLU's clients for interrogation abroad (known as extraordinary rendition). In February 2008, a lower court dismissed the case when the Bush administration claimed the state secrets privilege. The ACLU appealed the lower court's dismissal.

The Obama administration reasserted the privilege on Feb. 9, explaining that it had thoroughly vetted the previous administration’s claim and agreed with its decision to invoke the privilege.

The use of the state secrets privilege by the Obama administration brought swift and strong reactions from civil liberty groups. Anthony D. Romero, Executive Director of the ACLU, complained, "Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue." Romero also warned, "If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

There are other cases pending on state secrets, including El-Masri v. Tenet and Al-Haramain v. Bush. Whether or not the Obama administration continues to pursue the same application of the privilege in these cases is unknown. It may be that the administration conducts cases pertaining to the actions of a prior administration differently from how the current administration will apply the state secrets privilege to its own actions.

Legislation: A Path to Change?

It has been 50 years since the U.S. Supreme Court established the state secrets privilege. Historically, it has only 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 to pressure courts to dismiss entire cases under the claim, arguing that any and all records related to the government's defense would be state secrets. Since courts, especially lower courts, rarely challenge use of the Supreme Court-established privilege, most cases have been dismissed upon the government's assertion of the privilege. In 2007, the Supreme Court also refused an opportunity to review the broader use of the privilege.

This has led many to support new legislation that would, at least, restrict the interpretation of the privilege. Since there is no law currently governing the use of the privilege, legislative action is the only way to ensure consistent executive interpretation across different administrations. The State Secrets Protection Act was reintroduced in both the House by Rep. Jerrold Nadler (D-NY) and the Senate by Sen. Patrick Leahy (D-VT) as an attempt to narrow the interpretation by setting uniform standards for how courts must view each assertion of the privilege. Senate co-sponsor Arlen Specter (R-PA) said that the act would bring “meaningful oversight by the courts and Congress to ensure the Executive branch does not misuse the privilege.” Leahy and Specter are the chair and ranking member, respectively, of the Senate Judiciary Committee, which has oversight of these issues.

The bills are the same as those introduced last year, but the two versions contain some small yet key differences. The Senate bill 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. The Senate version would apply only to current and future cases.