By Policy Intern Madeline Magnuson. 

How courts balance their roles as the arbiter of disputes against the need to protect national security is a matter of significant contention. Currently, courts often summarily dismiss lawsuits against the government based on the government’s bald assertion that litigating the case would harm national security. They often don’t review the underlying facts behind the government’s assertion to determine whether the executive branch’s assertion that military or state secrets are involved is true. As a result, litigants — people often harmed by government action — are denied the opportunity to make their case.

This short-circuiting of the judicial system has led to abuses where the only thing protected is the government from embarrassment about its bad behavior. These blanket national security assertions are permitted under a court-created doctrine known as the “state secrets privilege.” In order to make sure that courts adequately address the public’s needs, recently proposed legislation may curtail the abuse of the privilege while protecting legitimate national security needs.

The state secrets privilege originated in the 1953 Supreme Court case United States v. Reynolds. Ironically, only many years later did we learn that the “secret” protected in the Reynolds case was government negligence, not national security or military secrets. This judicially-created doctrine has never been legislatively codified.

In recent years, the privilege has been invoked with greater frequency. The Bush administration claimed the state secrets privilege 20 times in its first 6 years, as opposed to 51 times in the preceding 24 years. In all of the instances raised by the Bush administration, the executive branch sought ‘blanket dismissal‘ of every case on state secrets grounds, including ones that challenged the constitutionality of ongoing programs such as warrantless wiretapping and extraordinary rendition.

President Obama appears to be following in his predecessor’s footsteps despite having criticized President Bush’s abuse of the privilege. He has kept almost all of the Bush-era claims of privilege in place and even invoked the state secrets privilege himself to shield the secret targeted killing of untried US citizens—and other administration practices—from constitutional challenge. While President Obama did announce a new state secret review procedure, it creates a new layer of review wholly within the executive branch, as opposed to an independent review offered by the courts.

In response to the widening and unreviewable use of the privilege, legislation has been introduced in the House of Representatives to regularize its use. The proposed bi-partisan State Secrets Protection Act (H.R. 5956) establishes balanced procedures for how the executive branch can invoke this privilege, limiting the government’s ability to evade legal accountability. It would still allow the government to block disclosure of information that endangers national security—but with a narrower scope and a more transparent process.

Under the State Secrets Protection Act, the head of the relevant executive branch agency claiming the state secrets privilege must sign an affidavit explaining the claim’s factual basis and make public an unclassified version. The agency must also provide the court with an index of all the supposedly privileged information, noting the specific argument for keeping each portion secret.

The bill grants the judiciary powerful tools to examine assertions of the state secrets privilege. It empowers and requires courts to independently evaluate the claim of privilege, after hearing the arguments on both sides and privately reviewing the privileged information along with associated evidence. This would significantly restore the judicial branch’s ability to check the executive branch.

Courts have significant experience evaluating national security matters. Since 1980, criminal courts have followed similar procedures in adherence with the Classified Information Procedures Act (CIPA). FISA courts (i.e. created under the Foreign Intelligence Surveillance Act ) oversee federal requests for surveillance warrants.

If the court determines that the state secrets claim is valid—that the information cannot be disclosed without significantly endangering national security—it would be able to require the government to provide nonprivileged substitutes such as summaries, redacted versions, or lists of relevant facts. This would allow the business of the courts to go forward.

Were the court to deem a workable nonprivileged substitute impossible, it must give the legal parties a chance to prove their case without access to the privileged information. And finally, if this state-secrets-protected information is absolutely necessary to decide a legal issue, the judge must rule on the issue in ‘the interest of justice,’ taking the privileged information into account.

This proposed legislation (HR 5956) would make significant strides towards ensuring the executive branch is not beyond the law.