Over the past 56 years, the Executive Branch has enjoyed a seemingly unchecked right to shut down litigation in the name of “state secrets.” The landmark 1953 case that gave vitality to the “state secrets” privilege was United States v. Reynolds. In that case, three widows sued the government after their husbands died in the crash of a U.S. Air Force aircraft that they had help engineer. During discovery, the government refused to produce the Air Force accident report and statements of crew survivors to plaintiffs or even the judge for in camera inspection. The trial court and the Third Circuit found that the government could not unilaterally decide what it could withhold as permitting it to do so would eliminate the independent judiciary’s important check on government. The Supreme Court in Reynolds disagreed, finding that the government had the right to withhold evidence from private parties when disclosure, according to the government, would endanger national security. In the wake of Reynolds, judges tend to dismiss private lawsuits as soon as the government asserts the “state secrets” privilege. The Bush Administration frequently invoked the “state secrets” privilege, most notably in cases challenging the constitutionality of its national security programs including the warrantless wiretapping, rendition, and interrogation programs.
Yet, as two recent books (both elegantly written and carefully developed, see here and here) demonstrate, Reynolds stands on troubling ground: the Air Force report (released in 1996) contained no secrets but did attest to the Air Force’s negligent conduct. This ignominious history illustrates the great danger of giving the Executive Branch unchecked power to invoke the state secrets privilege: it can be, and has been, used for the sole purpose of concealing government misconduct or carelessness.
Responding to this concern, Senate Judiciary Committee members last week unveiled the State Secrets Protection Act, a bill that would help check the misuse of the “state secrets” privilege. As Chairman Patrick Leahy explained, the bill endeavors to “guide courts to balance the government’s interest in secrecy with accountability and the rights of citizens to seek judicial redress.” The bill would provide a uniform set of procedures for federal courts considering claims of the state secrets privilege, such as in camera hearings and special masters. It would require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits as courts have increasingly been wont to do. The Committee report explains that the bill addresses the crisis of legitimacy surrounding the privilege by setting forth clear rules that take into account national security and the Constitution. Although the privilege had an ignominious beginning, this bill would work to secure for it a more reputable life.