The Electronic Frontier Foundation has launched its campaign to ramp up support for the State Secrets Protection Act of 2009 (S. 417).   Although a recent appellate court decision has thrown the executive branch’s broad interpretation of power into question, legislation is still needed to codify restrictions to presidential authority.  Please act now to make your voice heard on this important issue.

Historically, the privilege 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.  The privilege has been used to cover up violations of U.S. and international law such as wiretapping programs, torture, and rendition.

The Obama administration has unfortunately maintained this broad interpretation of executive power.  The administration applied the same Bush administration arguments to three different cases in an attempt to hide details of extraordinary rendition and wiretapping programs – the later being a clear case of covering up government misconduct.  Further, the President has been adamant about his authority stating, “[I]t is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security.”

This important bill holds promise to begin reforming the overuse and abuse of the privilege.   While I urge you to take action, please note that there are important differences between this bill and, in my opinion a better, House version of the bill (H.R. 984).  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.

Endorse the State Secrets Reform Act Here.

If you live in any of the following states, you will be able to send a message to a senator on the Senate Judiciary Committee: