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On Tuesday, Secrecy News called attention to a "new report from the Senate Judiciary Committee examines the use of the state secrets privilege by the executive branch and describes the intent of new legislation to strengthen judicial review of its use in civil litigation."[1] -- The state secrets privilege is a legal ploy devised by the U.S. national security state in the 1950s enabling it to override legal proceedings that are not in its interest; it is not dissimilar in effect to the political committees that sit alongside Chinese courts and allow the totalitarian Chinese government to annul any verdict or sentence that it regards as politically noxious or inconvenient. -- In recent years the privilege has been invoked more and more frequently, including, as, in the Sibel Edmonds case, the subject of a documentary entitled "Kill the Messenger" (original title: 'Une Femme à abattre') recently shown by UFPPC. -- The beginning of the Judiciary Committee's report is reproduced below.[2] -- The report notes that "the state secrets privilege has never been codified in statute." -- A 2005 study found that "In the twenty-three years between the decision in Reynolds and the election of Jimmy Carter, in 1976, there were four reported cases in which the Government invoked the privilege. Between 1977 and 2001, there were a total of fifty-one reported cases in which courts ruled on invocation of the privilege." -- The Judiciary Committe report notes that "some Federal courts have viewed assertions of the privilege as a virtual 'automatic win' for the Government. Courts have refused to review key pieces of allegedly privileged evidence, given unwarranted deference to the executive branch on the danger of disclosure, upheld claims of state secrets even when the purported secrets were publicly available, and dismissed lawsuits at the pleadings stage, without considering any evidence at all." ...

A new report from the Senate Judiciary Committee examines the use of the state secrets privilege by the executive branch and describes the intent of new legislation to strengthen judicial review of its use in civil litigation.

The 53-page report summarizes the latest legal scholarship on the state secrets privilege, as well as the controversy that has surrounded it.

"In recent years, the executive branch has asserted the privilege more frequently and broadly than before, typically to seek dismissal of lawsuits at the pleadings stage. 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. Courts have largely acquiesced," the report states.

"While there is some debate over the extent to which this represents a quantitative or qualitative break from past practice, '[w]hat is undebatable . . . is that the privilege is currently being invoked as grounds for dismissal of entire categories of cases challenging the constitutionality of Government action,' and that a strong public perception has emerged that sees the privilege as a tool for Executive abuse."

"In response to the growing concerns about the state secrets privilege, Senator Kennedy, Senator Specter, and Senator Leahy introduced the State Secrets Protection Act to provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in Government and the courts."

The new report includes dissenting views from several Republican members of the Judiciary Committee, who argue that the existing arrangements already strike the "right balance between openness, justice, and national security."

See "State Secrets Protection Act," Senate Judiciary Committee Report 110-442, August 1:

Another new report from the Senate Judiciary Committee addresses court-ordered secrecy, and would limit judicial authority to seal court records pertaining to public health and safety. The report describes pending legislation that "requires judges to consider the public's interest in disclosure of health and safety information before issuing a protective order or an order to seal court records or a settlement agreement."

See "Sunshine in Litigation Act," Senate Judiciary Committee Report 110-439, August 1:

The Committee on the Judiciary, to which was referred the bill (S. 2533), to enact a safe, fair, and responsible state secrets privilege Act, having considered the same, reports favorably thereon, with an amendment, and recommends that the bill, as amended, do pass.

I. Background and Purpose of the State Secrets Protection Act.......2
II. History of the Bill and Committee Consideration.................13
III. Section-by-Section Summary of the Bill..........................15
IV. Congressional Budget Office Cost Estimate.......................35
V. Regulatory Impact Evaluation....................................36
VI. Conclusion......................................................36
VII. Minority Views of Senators Hatch, Grassley, Kyl, Sessions, Graham, Cornyn, Brownback and Coburn....................................37
VIII.Changes to Existing Law Made by the Bill, as Reported...........47

The "state secrets privilege" is a common law rule of evidence that the Federal Government can invoke to prevent materials from being publicly disclosed in civil court proceedings, if the Government establishes that such disclosure would harm the Nation. In the early 1970s, Congress considered including a state secrets provision in the Federal Rules of Evidence, but it ultimately decided not to include any privileges.\1\ Although numerous laws govern the handling of classified documents and other information that may implicate state secrets in specific contexts, the state secrets privilege has never been codified in statute.

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\1\See Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case 141-44 (2006); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1292 (2007).
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The Supreme Court addressed the state secrets privilege at length for the first (and last) time in United States v. Reynolds,\2\ a 1953 tort suit brought by widows of civilian engineers who died in an Air Force plane crash. The Reynolds decision has been criticized as internally contradictory and excessively deferential to the Executive,\3\ and commentators dispute the extent to which it is followed by lower courts today.\4\ Nevertheless, it remains the foundational case on the privilege and the starting point for judicial review of privilege claims. As one commentator describes it, the analytical framework established in Reynolds comprises several basic principles:

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\2\345 U.S. 1 (1953).
\3\See, e.g., Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006); Neil Kinkopf, The State Secrets Problem: Can Congress Fix It?, 80 Temp. L. Rev. 489, 492-93 (2007); William G. Weaver & Danielle Escontrias, Origins of the State Secrets Privilege 57-66 (Feb. 10, 2008) (unpublished manuscript), available at http://papers.ssrn.com/ abstract=1079364; Justin Florence & Matthew Gerke, State Your Secrets: The Smart Way Around Telecom Immunity, Slate, Nov. 14, 2007, http:// www.slate.com/id/2177962.
\4\See, e.g., Louis Fisher, Congressional Access to National Security Information, 45 Harv. J. on Legis. 219, 220 (2008) ("Federal courts vary widely in interpreting their duties when the Executive Branch claims [the state secrets] privilege. Some courts insist that the trial judge should receive the disputed documents and examine them in camera. Others adopt judicial standards ranging from `deference' to `utmost deference' to treating the privilege as an `absolute.'" (internal citations omitted)); Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis & Clark L. Rev. 99, 132 (2007) (describing "deviations from Reynolds" that are "interfering with the opportunity to pursue claims of violations of private and public constitutional rights"); John Cary Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell L. Rev. 1593, 1597 (2007) ("Have the executive branch's recent assertions of the state secrets privilege broken from the doctrinal moorings of the Reynolds decision? Yes. * * * [T]he state secrets doctrine has been expanded beyond all reason * * *.'').

(a) the claim of privilege must be formally asserted by the head of the department charged with responsibility for the information; (b) the reviewing court has the ultimate responsibility to determine whether disclosure of the information in issue would pose a "reasonable danger" to national security; (c) the court should calibrate the extent of deference it gives to the Executive's assertion with regard to the plaintiff's need for access to the information; (d) the court can personally review the sensitive information on an in camera, ex parte basis if necessary; and (e) once the privilege is found to attach, it is absolute and cannot be overcome by a showing of need or offsetting considerations.\5\

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\5\Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1251-52 (2007).

In recent years, the executive branch has asserted the privilege more frequently and broadly than before, typically to seek dismissal of lawsuits at the pleadings stage.\6\ Facing allegations of unlawful Government conduct ranging from domestic warrantless surveillance,\7\ to employment discrimination,\8\ to retaliation against whistleblowers,\9\ to torture and ``extraordinary rendition,''\10\ the Bush-Cheney administration has invoked the privilege in an effort to shut down civil suits against both Government officials and private parties. Courts have largely acquiesced. While there is some debate over the extent to which this represents a quantitative or qualitative break from past practice, "[w]hat is undebatable * * * is that the privilege is currently being invoked as grounds for dismissal of entire categories of cases challenging the constitutionality of Government action,"\11\ and that a strong public perception has emerged that sees the privilege as a tool for Executive abuse. The state secrets privilege "has long been the subject of academic criticism,"\12\ but the criticism has escalated dramatically and aroused widespread concern. Indeed, in the burgeoning literature on the privilege, it is hard to find a single positive view on the current state of the law.\13\>

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\6\See William G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 Pol. Sci. Q. 85, 101 (2005) ("Use of the state secrets privilege in courts has grown significantly over the last twenty-five years. In the twenty-three years between the decision in Reynolds and the election of Jimmy Carter, in 1976, there were four reported cases in which the Government invoked the privilege. Between 1977 and 2001, there were a total of fifty-one reported cases in which courts ruled on invocation of the privilege.''); Scott Shane, Invoking Secrets Privilege Becomes a More Popular Legal Tactic by U.S., N.Y. Times, June 4, 2006, at A32 (describing recent cases); Scholars' Letter to Senate Judiciary Committee 1 (Feb. 12, 2008) ("Although the privilege was asserted sparingly over the first few decades of its existence, it has been raised with increasing frequency over the past twenty years by both Democratic and Republican administrations. The privilege has been cited not only as grounds for withholding evidence, but also as a basis for the immediate dismissal, prior to discovery, of entire categories of cases challenging the legality of executive conduct.").
\7\See, e.g., Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644 (6th Cir. 2007), cert. denied, 128 S. Ct. 1334 (2008); Al- Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007); Terkel v. AT&T Corp., 441 F. Supp. 2d 899 (N.D. Ill. 2006); Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006).
\8\See, e.g., Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005), cert. denied sub nom Sterling v. Goss, 546 U.S. 1093 (2006).
\9\See, e.g., Edmonds v. U.S. Dep't of Justice, 323 F. Supp. 2d 65 (D.D.C. 2004).
\10\See, e.g., El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006), aff'd 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373 (2007); Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006); Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128 (N.D. Cal. 2008).
\11\Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1950 (2007). Professor Robert Chesney has argued that "that the Bush administration does not differ qualitatively from its predecessors in its use of the privilege, which since the early 1970s has frequently been the occasion for abrupt dismissal of lawsuits alleging government misconduct." Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1249 (2007); see also id. ("I also conclude that the quantitative inquiry serves little purpose in light of variation in the number of occasions for potential invocation of the privilege from year to year."). Other scholars dispute this contention. See, e.g., Frost, supra, at 1939-40 ("[T]he Bush Administration's recent assertion of the privilege differs from past practice in that it is seeking blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs. In comparison, the government responded to lawsuits brought in the 1970s and 1980s challenging its warrantless surveillance programs by seeking to limit discovery, and only rarely filed motions to dismiss the entire litigation. The current practice is thus unique.'' (internal citation omitted)); Meredith Fuchs, Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy, 58 Admin. L. Rev. 131, 134 (2006) ("In the courts, the government has dramatically increased use of potent litigation tactics such as motions to dismiss lawsuits on the basis of state secrets privilege."); John Cary Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell L. Rev. 1593, 1598 (2007) ("The state secrets doctrine is quickly becoming an additional and almost-impermeable immunity doctrine * * *."); William G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 Pol. Sci. Q. 85, 109 (2005) ("[R]ecent cases indicate that Bush administration lawyers are using the privilege with offhanded abandon."); see also Letter from William G. Weaver, Associate Professor, University of Texas at El Paso, and Danielle Escontrias to Senator Kennedy (Feb. 8, 2008) (disputing Professor Chesney's methodology and conclusions).
\12\Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1267 n.113 (2007) (providing numerous citations).
\13\See Michael H. Page, Note, Judging Without the Facts: A Schematic for Reviewing State Secrets Privilege Claims, 93 Cornell L. Rev. (forthcoming 2008) (noting that "[c]ommentators have almost universally criticized the state secrets privilege" and that "[m]any commentators have criticized the courts for being overly deferential to the government's claims of privilege" and providing citations). Examples of recent critiques include Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case chs. 7-8 (2006); Timothy Casey, Electronic Surveillance and the Right To Be Secure, 41 U.C. Davis L. Rev. 977, 1024-25 (2008); Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931 (2007); Lisa Graves, Ten Questions: Responses of Lisa Graves, 33 Wm. Mitchell L. Rev. 1619, 1622-23 (2007); Neil Kinkopf, The State Secrets Problem: Can Congress Fix It?, 80 Temp. L. Rev. 489 (2007); Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis & Clark L. Rev. 99 (2007); John Cary Sims, Ten Questions: Responses of John Cary Sims, 33 Wm. Mitchell L. Rev. 1593, 1597-99 (2007); D.A. Jeremy Telman, Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege, 80 Temp. L. Rev. 499 (2007); David C. Vladeck, Litigating National Security Cases in the Aftermath of 9/11, 2 J. Nat'l Security L. & Pol'y 165, 186-92 (2006); William G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 Pol. Sci. Q. 85 (2005); Robyn Blumner, Injustice Hides Behind Badge of Security, St. Petersburg Times, Feb. 10, 2008, at 5P; Susan Burgess, Cases Without Courts, News Media & L., July 1, 2006, at 32; Editorial, Privileged Tyranny, Daytona News-J., Mar. 13, 2008, at A4; Editorial, Secrets and Rights, N.Y. Times, Feb. 2, 2008, at A18; Editorial, Secure Lawsuits, Wash. Post, Mar. 6, 2008, at A20; Editorial, What's a Secret?, Wash. Post, Apr. 11, 2008, at A20; Editorial, Whose Privilege?, N.Y. Times, Apr. 18, 2008, at A24; Bruce Fein, State Secrets Abuse, Wash. Times, Mar. 13, 2007, at A16; Justin Florence & Matthew Gerke, State Your Secrets, Slate, Nov. 14, 2007, http://www.slate.com/id/2177962; Henry Lanman, Secret Guarding, Slate, May 22, 2006, http://www.slate.com/id/2142155; Ben Wizner, Shielded by Secrecy, L.A. Times, Feb. 14, 2008, at A25.
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One line of criticism has emphasized the lack of uniformity in judicial review of privilege claims, and the confusion and uncertainty this invites. For several decades, Congress has provided procedures to govern the use of sensitive national security evidence under the Classified Information Procedures Act ("CIPA"),\14\ the Freedom of Information Act ("FOIA"),\15\ and the Foreign Intelligence Surveillance Act ("FISA").\16\ Yet, with only a single ambiguous Supreme Court decision from the 1950s to guide them,\17\ lower courts have been taking disparate approaches when faced with a claim of the state secrets privilege. The Supreme Court has declined to intervene.\18\ As a result, the courts have reached inconsistent results, and litigants have been left to "flounder under the ad hoc procedures and varying standards employed by the courts today."\19\

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\14\18 U.S.C. app. 3 Sec. Sec. 1-16 (2000).
\15\5 U.S.C. Sec. 552 (2000).
\16\50 U.S.C. Sec. Sec. 1801-1811 (2000).
\17\See supra note 4 and accompanying text; see also William G. Weaver & Danielle Escontrias, Origins of the State Secrets Privilege 68 (Feb. 10, 2008) (unpublished manuscript), available at http:// papers.ssrn.com/abstract=1079364 ("[T]he decision in Reynolds is devoid of policy, theory, or principles to guide lower courts.").
\18\See Am. Civil Liberties Union v. Nat'l Sec. Agency, 493 F.3d 644 (6th Cir. 2007), cert. denied, 128 S. Ct. 1334 (2008); El-Masri v. Tenet, 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373 (2007).
\19\Scholars' Letter to Senate Judiciary Committee 2 (Feb. 12, 2008); see also Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability, Hearing before the S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (statement of Patricia M. Wald) (explaining that "there has not been uniformity in the case law surrounding what the judges should do in administering the privilege" and stating that it would "be helpful to [judges] to have a protocol, to have a series of steps they must go forward with * * * [to] produce more uniform results"); Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability, Hearing before the S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of H. Thomas Wells, Jr., President-Elect, American Bar Association) ("Courts have been required to evaluate [claims of the state secrets] privilege without the benefit of statutory guidance or clear precedent. This has resulted in the application of inconsistent standards and procedures in determinations regarding the applicability of the privilege."); Letter from Michael W. Macleod-Ball & Michael German, Am. Civil Liberties Union, to Senators Patrick Leahy and Arlen Specter 3 (Apr. 2, 2008) (lamenting the "substantial confusion in the lower courts regarding both when the privilege properly may be invoked, and what precisely the privilege may be invoked to protect," as well as regarding "how deeply a court must probe the government's claim of the privilege, and what, exactly, the court must examine in assessing a privilege claim").

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Furthermore, some Federal courts have viewed assertions of the privilege as a virtual "automatic win" for the Government. Courts have refused to review key pieces of allegedly privileged evidence, given unwarranted deference to the executive branch on the danger of disclosure, upheld claims of state secrets even when the purported secrets were publicly available, and dismissed lawsuits at the pleadings stage, without considering any evidence at all.\20\ Scholars have found that courts have required in camera inspection of allegedly privileged documents in fewer than one-third of the reported cases in which the privilege has been invoked, and that this proportion is declining.\21\ As a result, "even though the Reynolds case held that 'judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers,' the practical effect of the decision [has been] to cause precisely that result."\22\ When courts fail to scrutinize assertions of the privilege, they leave open the possibility that the privilege will be used to cover up Government wrongdoing, thereby denying justice to litigants and giving the executive branch the ability to violate statutes and constitutional rights with impunity.

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\20\The controversial El-Masri decision, for example, featured each of these practices. See El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006), aff'd 479 F.3d 296 (4th Cir. 2007), cert. denied, 128 S. Ct. 373 (2007); see also Editorial, Supreme Disgrace, N.Y. Times, Oct. 11, 2007, at A30 (excoriating the Supreme Court for denying Mr. El-Masri's petition for certiorari and observing that the state secrets privilege "was originally intended to shield specific evidence in a lawsuit filed against the government" and "was never designed to dictate dismissal of an entire case before any evidence is produced").
\21\William G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 Pol. Sci. Q. 85, 101 (2005).
\22\Id. (quoting United States v. Reynolds, 345 U.S. 1, 9-10 (1953)); see also William G. Weaver & Danielle Escontrias, Origins of the State Secrets Privilege 65-66 (Feb. 10, 2008) (unpublished manuscript), available at http://papers.ssrn.com/abstract=1079364 ("It is difficult to conclude other than that courts have simply abandoned the field of a contentious area of law.").
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The pitfalls of such extreme deference to the executive branch can be seen in United States v. Reynolds,\23\ the very case that serves as the basis for privilege doctrine to this day. In Reynolds, the widows of the deceased B-29 crew members asked to see the Government's accident report. Citing the state secrets privilege, the Government refused to turn it over. The Supreme Court accepted the executive branch's assertion that the accident report contained references to secret electronic equipment and refused to allow the report to be considered as evidence, without ever looking at the report itself.

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\23\345 U.S. 1 (1953).
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When the accident report was declassified in the 1990s, it turned out that it did not contain any references to secret electronic equipment -- but it did contain embarrassing information revealing Government negligence (that the plane lacked standard safeguards to prevent the engine from overheating).\24\ The notion that the entire report constituted a state secret was thrown into serious doubt. As summarized by Louis Fisher, Specialist in Constitutional Law at the Library of Congress and the leading expert on the Reynolds case: "Instead [of looking at the disputed documents], the Court relied entirely on assertions by executive officials about the content of the documents. We now know, by looking at the documents, that they contain no state secrets. The Court was misled by the executive branch and allowed itself to be misled."\25\

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\24\See Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006).
\25\Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability, Hearing before the S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of Louis Fisher). The decedents' families recently tried to have their lawsuit reopened on the basis of fraud on the court, but their petition was denied on account of the high bar to overcoming judicial finality. Herring v. United States, 2004 WL 2040272 (E.D. Pa. Sept. 10, 2004), aff'd 424 F.3d 384 (3d Cir. 2005), cert. denied 547 U.S. 1123 (2006).
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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. Perversely, overuse of the privilege may undermine national security by making those with access to sensitive information more likely to release it. As one former CIA officer stated recently: "There will finally be an instance where you've cried 'state secrets' so many times that [no one will] believe it anymore, and potentially something that is a state secret will get out."\26\

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\26\Patrick Radden Keefe, State Secrets: A Government Misstep in a Wiretapping Case, New Yorker, Apr. 28, 2008, at 28; see also Report of the Commission on Protecting and Reducing Government Secrecy, S. Doc. No. 105-2, at 8 (1997) ("As the scope of secrecy grows * * *, the prospect for leaks--deliberate releases of classified information, nearly always on an anonymous basis -- grows as well. Secrets become vulnerable to betrayal, often from high in the chain of command; this in turn promotes greater disrespect for the system itself.").
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In response to these concerns, many have called on Congress to provide guidance to the judiciary and the executive branch on use of the privilege. The American Bar Association issued a report "urg[ing] Congress to enact legislation governing federal civil cases implicating the state secrets privilege."\27\ The bipartisan Constitution Project found that "legislative action [on the privilege] is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."\28\ A letter on the privilege sent to Congress by leading constitutional scholars concluded that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."\29\ Patricia M. Wald, former Chief Judge of the D.C. Circuit, testified that "[t]here is a wide consensus in the legal community" that Congress should prescribe regulations on the privilege, and that "[t]he time is now ripe for such legislation."\30\

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\27\Am. Bar Ass'n, Report to the House of Delegates 1 (Revised Report 116A) (2007).
\28\Constitution Project, Reforming the State Secrets Privilege, at ii (2007).
\29\Scholars' Letter to Members of Congress 3-4 (Oct. 4, 2007).
\30\Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability, Hearing before the S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (prepared statement of Patricia M. Wald).
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Courts and scholars have debated the origins of the privilege\31\ and whether it is a "mere" common law rule or whether it also has some foundation in the Constitution, notwithstanding the lack of explicit textual or historical support for such a view.\32\ Regardless of whether the privilege has any constitutional dimension, however, there is widespread agreement that Congress has constitutional authority to regulate the privilege,\33\ based on its Article III powers to set rules of procedure and evidence for the Federal courts,\34\ its Article I powers related to national security and foreign affairs,\35\ and the Necessary and Proper Clause.\36\ Article II is not the only relevant part of the Constitution. Even if the state secrets privilege were in some respect "rooted'' in our constitutional structure,\37\ there is no bar to Congress, using its own authorities rooted in the Constitution, exercising concurrent authority over the protection of state secrets or providing rules for implementation of the privilege. Congress has passed numerous statutes regulating judicial proceedings that deal with national security information, such as the Classified Information Procedures Act, the Freedom of Information Act, and the Foreign Intelligence Surveillance Act, none of which has ever faced a successful constitutional challenge.\38\

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\31\See, e.g., In re United States, 872 F.2d 472, 474 (D.C. Cir. 1989) ("[T]he exact origins of the privilege are not certain * * *."); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1270-1308 (2007) (tracing the history of the privilege); William G. Weaver & Danielle Escontrias, Origins of the State Secrets Privilege (Feb. 10, 2008) (unpublished manuscript), available at http://papers.ssrn.com/ abstract=1079364 (locating the origins of the privilege in English crown prerogative).
\32\Compare United States v. Reynolds, 345 U.S. 1, 6 (1953) (stating that preclusive Executive Branch assertions of the privilege have "constitutional overtones which we find it unnecessary to pass upon"); and Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1309-10 (2007) (suggesting that the privilege has a "constitutional core surrounded by a revisable common-law shell"); with Reynolds, 345 U.S. at 6-7 (describing the privilege as "well established in the law of evidence" (emphasis added)); Monarch Assur. P.L.C. v. United States, 244 F.3d 1356, 1358 (Fed. Cir. 2001) (describing the "common-law state secrets privilege"); Kasza v. Browner, 133 F.3d 1159, 1165 (9th Cir. 1998) (describing the privilege as "a common law evidentiary privilege that allows the government to deny discovery of military secrets"); In re United States, 872 F.2d 472, 474 (D.C. Cir. 1989) (describing the privilege as "a common law evidentiary rule"); and Fed R. Evid. 501 notes of Committee on the Judiciary, H. Rep. No. 93-650 (describing the "secrets of state" privilege as one of nine "nonconstitutional privileges" that the Supreme Court submitted to Congress). In United States v. Nixon, 418 U.S. 683, 708 (1974), the Supreme Court stated that the presidential communications privilege is "inextricably rooted in the separation of powers under the Constitution," but the Court has never made any comparable pronouncement on the state secrets privilege.
\33\See, e.g., Am. Bar Ass'n, Report to the House of Delegates 1 (Revised Report 116A) (2007) (analogizing to the Classified Information Procedures Act in urging Congress to enact legislation on the privilege); Constitution Project, Reforming the State Secrets Privilege 14 (2007) (asserting that "our constitutional system of checks and balances" will be jeopardized unless Congress enacts legislation on the privilege); Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1932-33, 1951-56 (2007) (stating that, in this area as in others, "Congress's power to confer jurisdiction permits Congress to work together with courts to police the activities of the executive branch"); Neil Kinkopf, The State Secrets Problem: Can Congress Fix It?, 80 Temp. L. Rev. 489, 494-98 (2007) (cataloguing constitutional "powers [that] provide a strong basis for Congress to respond to the growing problems raised by the state secrets privilege"); Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability, Hearing before the S. Comm. on the Judiciary, 110th Cong. (Feb. 13, 2008) (statement of Louis Fisher) ("Congress has all the legitimacy in the world to provide the guidelines [on judicial review of the privilege]."); id. (statement of Robert Chesney) ("The power to regulate, I think it's clearly within the constitutional power of Congress to create rules that will govern the process of the privilege, and so on and so forth."); Letter from Aziz Huq and Emily Berman, Brennan Center for Justice, to David Pozen 2-4 (Apr. 3, 2008) (explaining why, even assuming arguendo that the privilege is constitutionally based, "state secrets legislation would not trench on Article II authority"). Cf. Herbert v. Lando, 441 U.S. 153, 175 (1979) ("Evidentiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances." (citing United States v. Nixon, 418 U.S. 683 (1974)); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) (observing that, in matters of national security as in all others, the President's power to pursue a course of action is diminished to the extent that Congress regulates that action pursuant to its constitutional authorities).
\34\U.S. Const. art. III, Sec. 2, cl. 2 (expressly granting Congress the power to enact "Regulations" concerning the jurisdiction of Federal courts); see also Dickerson v. United States, 530 U.S. 428, 437 (2000) ("Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution."); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts * * *.").
\35\See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2773-74 (2006) (discussing the enumerated powers granted to Congress in a time of war); Hamdi v. Rumsfeld, 542 U.S. 507, 582 (2004) (Thomas, J., dissenting) (noting Congress's "substantial and essential role in both foreign affairs and national security"); Afroyim v. Rusk, 387 U.S. 253, 256 (1967) (reaffirming that "Congress has an implied power to deal with foreign affairs as an indispensable attribute of sovereignty"); Aptheker v. Sec'y of State, 378 U.S. 500, 509 (1964) ("That Congress under the Constitution has power to safeguard our Nation's security is obvious and unarguable."); Letter from 23 Constitutional Law Scholars to Congress at 2, 6, available at http:// www.law.duke.edu/features/pdf/congress_power_letter.pdf (cataloguing the "extensive powers relating to war" explicitly granted by the Constitution to Congress and explaining the Supreme Court's consistent reliance on Justice Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer to require the President to comply with applicable statutory limits in wartime); see also Hamdi, supra, 542 U.S. at 536 ("Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.").
\36\U.S. Const. art. I, Sec. 8, cl. 18.
\37\This Administration and recent predecessors have relied heavily on Department of Navy v. Egan, 484 U.S. 518 (1988), for the proposition that statutes regulating the disclosure of sensitive national security information may raise constitutional concerns. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb--A Constitutional History, 121 Harv. L. Rev. 941, 1084-85 (2008) (providing recent examples). However, the Supreme Court's statement in Egan that "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs," 484 U.S. at 530 (emphasis added), plainly implies that Congress possesses the constitutional authority to pass such regulations. It is also instructive to note that the Court in Egan appears to have adopted this formulation from the Justice Department itself, which argued in its brief that "[a]bsent an unambiguous grant of jurisdiction by Congress, courts have traditionally been reluctant to intrude upon the authority of the executive in military and national security affairs." Brief for the Petitioner at 21, Egan, 484 U.S. 518 (1988) (No. 86-1552) (emphasis added).
\38\In July 21, 2008, remarks to the American Enterprise Institute, Attorney General Michael Mukasey endorsed legislative intervention in cases implicating national security when there exists a "serious risk of inconsistent rulings and considerable uncertainty," and noted that congressional action to provide procedures in national security cases is "well within the historic role and competence of Congress." Att'y Gen. Michael B. Mukasey, Speech at the American Enterprise Institute for Public Policy Research (July 21, 2008), available at http:// www.usdoj.gov/ag/speeches/2008/ag-speech-0807213.html. Although he was proposing action in another setting, the Attorney General's arguments likewise support legislation to standardize and clarify the procedures governing the state secrets privilege.
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In response to the growing concerns about the state secrets privilege, Senator Kennedy, Senator Specter, and Senator Leahy introduced the State Secrets Protection Act to provide a systematic approach to the privilege and thereby bring stability, predictability, and clarity to this area of the law and restore the public trust in Government and the courts. In introducing the bill, Senator Kennedy remarked:

[In recent years], use of the state secrets privilege has dramatically increased--and the harmful consequences of its irregular application by courts have become painfully clear.
Injured plaintiffs have been denied justice; courts have failed to address fundamental questions of constitutional rights and separation of powers; and confusion pervades this area of law. The Senate debate on reforming the Foreign Intelligence Surveillance Act has become far more difficult than it ought to be, because many believe that if courts hear lawsuits against telecommunications companies, the courts will be unable to deal fairly and effectively with the Government's invocation of the privilege.
Studies show that the Bush administration has raised the privilege in over 25% more cases per year than previous administrations, and has sought dismissal in over 90% more cases. As one scholar recently noted, this administration has used the privilege to "seek blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs" related to its war on terrorism, and as a result, the privilege is impairing the ability of Congress and the judiciary to perform their constitutional duty to check Executive power.
Another leading scholar recently found that "in practical terms, the state secrets privilege never fails." Like other commentators, he concluded that "the state secrets privilege is the most powerful secrecy privilege available to the president," and "the people of the United States have suffered needlessly because the law is now a servant to executive claims of national security."
In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide Federal courts with clear statutory guidance on handling secret evidence in criminal cases. For almost 30 years, courts have effectively applied that law to make criminal trials fairer and safer. During that period, Congress has also regulated judicial review of national security materials under the Foreign Intelligence Surveillance Act and the Freedom of Information Act. Because of these laws, Federal judges regularly review and handle highly classified evidence in many types of cases.
Yet in civil cases, litigants have been left behind. Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We've failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information. Because use of the state secrets privilege has escalated in recent years, there's an increasing need for the judiciary and the Executive to have clear, fair, and safe rules.\39\

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\39\154 Cong. Rec. S198 (daily ed. Jan. 23, 2008) (statement of Sen. Kennedy).
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Senator Kennedy and I are introducing this bipartisan bill in order to harmonize the law applicable in cases involving the executive branch's invocation of the privilege. This bill is timely for several reasons. First, the use of the privilege appears to be on the rise in the post-September 11, 2001, era, which has generated new public attention and concern about its legitimacy. Second, there is some disparity among the district and appellate court opinions analyzing the privilege, particularly as to the question of whether courts must independently review the allegedly privileged evidence. Finally, a codified test for evaluating state secrets that requires courts to review the evidence in camera -- a Latin phrase meaning "in the judge's private chambers" -- will help to reassure the public that the claims are neither spurious nor intended to cover up alleged Government misconduct. With greater checks and balances and greater accountability, there is a commensurate increase in public confidence in our institutions of Government.
In view of its increasing use, inconsistent application, and public criticism, we think the time is ripe to pass legislation codifying standards on the state secrets privilege. Our bill builds upon proposals by the American Bar Association and legal scholars who have called upon Congress to legislate in this area.\40\

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\40\154 Cong. Rec. S199 (daily ed. Jan. 23, 2008) (statement of Sen. Specter).

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privilege, in his opening statement, Chairman Leahy noted:

The state secrets privilege has been used in recent years to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of American citizens. Reflecting on recent state secrets litigation, The New York Times has observed: "To avoid accountability, [the Bush] administration has repeatedly sought early dismissal of lawsuits that might finally expose government misconduct, brandishing flimsy claims that going forward would put national security secrets at risk."
The clearest example of the state secrets privilege short- circuiting litigation is the 2006 case of Khaled El-Masri. Mr. El-Masri, a German citizen of Lebanese descent, alleged that he was kidnapped on New Year's Eve in 2003 in Macedonia, and transported against his will to Afghanistan, where he was detained and tortured as part of the Bush administration's extraordinary rendition program. He sued the Government over his alleged detention and harsh treatment. A district court judge in Virginia dismissed the entire lawsuit on the basis of an ex parte declaration from the Director of the CIA and despite the fact that the Government has admitted that the rendition program exists. Mr. El-Masri has no other remedy. Our justice system is off limits to him, and no judge ever reviewed any of the actual evidence.
The Government has also asserted the state secrets privilege in the litigation over the warrantless wiretapping of Americans that took place for more than five years. There, a district court judge has rejected the Government's claim that the very subject matter at issue was a state secret, but the Government is appealing.
The state secrets privilege serves important goals where properly invoked. But there are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious Government misconduct. For the aggrieved parties, it means that the courthouse doors are closed--forever--regardless of the severity of their injury. They will never have their day in court. For the American public, it means less accountability, because there will be no judicial scrutiny of improper actions of the Executive, and no check or balance.

Secrecy can be important to national security, but it can also deprive the American people of their ability to judge the effectiveness of their Government on national security matters. It is critical that Federal judges not abdicate their role in our system of checks and balances as a check on the Executive.\41\

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\41\Statement of Senator Patrick Leahy (Feb 13, 2008), http:// leahy.senate.gov/press/200802/021308a.html.
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