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Congress Must Stop Abuses of Secrets Privilege

For decades, the government has used the “state secrets privilege” to block the use of evidence in litigation where revealing the evidence could harm national security. Under former President George W. Bush, the privilege was transformed into a weapon to shut down lawsuits challenging illegal or embarrassing government activity. President Barack Obama promised major changes.

Published in Roll Call. (Sub. required)

For decades, the govern­ment has used the “state secrets priv­ilege” to block the use of evid­ence in litig­a­tion where reveal­ing the evid­ence could harm national secur­ity. Under former Pres­id­ent George W. Bush, the priv­ilege was trans­formed into a weapon to shut down lawsuits chal­len­ging illegal or embar­rass­ing govern­ment activ­ity. Pres­id­ent Barack Obama prom­ised major changes.

This month, that prom­ise rang hollow as the Justice Depart­ment filed a brief that could have been authored – in substance, if not in form – by Bush Attor­ney General Alberto Gonzales himself.

The state secrets priv­ilege is a vital national secur­ity tool when prop­erly used. But there is tremend­ous poten­tial for the govern­ment to misuse the priv­ilege to conceal wrong­do­ing or avoid account­ab­il­ity. In the first Supreme Court case to recog­nize the priv­ilege – a lawsuit brought by the widows of the victims of a milit­ary plane crash – the govern­ment success­fully suppressed the crash acci­dent report, claim­ing that it contained sens­it­ive inform­a­tion about milit­ary tech­no­lo­gies. Decades later, when the report was declas­si­fied, it contained no state secrets – but it did contain power­ful proof of govern­ment negli­gence.

In Septem­ber, the Obama admin­is­tra­tion issued a new policy ostens­ibly designed to prevent such abuses. The policy allows the govern­ment to invoke the priv­ilege only where disclos­ure would cause “signi­fic­ant” harm to the national defense or foreign rela­tions – a higher bar than the previ­ous admin­is­tra­tion used. It requires a team of Justice Depart­ment attor­neys and the attor­ney general to approve agen­cies’ use of the priv­ilege. And, when the priv­ilege shuts down a lawsuit that alleges govern­ment miscon­duct, the policy creates two altern­at­ive mech­an­isms for account­ab­il­ity: review by an agency inspector general, and report­ing to Congress.

But the most import­ant needed reform was notably miss­ing. The state secrets priv­ilege is an “evid­en­tiary priv­ilege”: It is inten­ded to shield partic­u­lar docu­ments, testi­mony or inform­a­tion from disclos­ure. The Bush admin­is­tra­tion, however, frequently argued that entire subject matters were off-limits, shut­ting down lawsuits before the evid­ence was even iden­ti­fied. The new policy allows the govern­ment to continue using the priv­ilege to shut down lawsuits prema­turely.

Admin­is­tra­tion offi­cials assured open govern­ment advoc­ates that this author­ity would be invoked rarely, if ever. Many advoc­ates decided to with­hold judg­ment, believ­ing that the proof would be in the pudding.

We now have that proof. In the first test of its new policy, the Obama admin­is­tra­tion has asked a court to dismiss a case chal­len­ging illegal govern­ment wiretap­ping. Fore­cast­ing that the evid­ence needed to litig­ate the case would be priv­ileged, the admin­is­tra­tion urged the court not to test this predic­tion by actu­ally identi­fy­ing and assess­ing the relev­ant evid­ence, but to simply shut the case down. Even more disturb­ing, the admin­is­tra­tion argued that the “very subject matter” of the case is a state secret. These are the same argu­ments the Bush admin­is­tra­tion made in case after case.

Given a policy that permits over­broad claims of priv­ilege and a now-proven will­ing­ness on the part of the admin­is­tra­tion to use that author­ity, there is no longer any reason to wait. It is time for Congress to step in and take the neces­sary steps to curb abuses of the state secrets priv­ilege. This will involve several key reforms.

First, Congress must ensure that courts do not shut down lawsuits without first determ­in­ing that the evid­ence needed to litig­ate the case is priv­ileged. In order to make this determ­in­a­tion, the relev­ant evid­ence must be iden­ti­fied through discov­ery, and the court must assess each item of evid­ence to eval­u­ate the govern­ment’s priv­ilege claim.

Second, Congress must protect judges’ role as the final arbit­ers of whether the priv­ilege applies – a role they cannot possibly perform unless they see and under­stand the evid­ence in ques­tion. Congress should thus require the govern­ment to submit the evid­ence to the judge for review behind closed doors. Such judi­cial review is a key safe­guard against abuse, and there’s no reason to dispense with it. We trust federal judges to handle clas­si­fied inform­a­tion in crim­inal cases; surely we can trust them not to leak secrets to North Korea or al-Qaida.

Third, Congress should consider ways to allow lawyers for the other side to parti­cip­ate in priv­ilege determ­in­a­tions. After all, parti­cip­a­tion by oppos­ing parties is at the heart of our system of justice; it is the best guar­antor of getting to the truth. Precau­tions can be taken to make sure that national secur­ity is protec­ted. For example, where needed, a judge could appoint special secur­ity-cleared coun­sel to repres­ent the nongov­ern­ment party’s interests.

Finally, Congress should direct judges to look for ways to keep legit­im­ate cases alive even if import­ant evid­ence is deemed a state secret. One option is to require the govern­ment to create nonpriv­ileged substi­tutes for the priv­ileged evid­ence where possible, such as redac­ted versions or summar­ies. This tech­nique has been success­ful in deal­ing with clas­si­fied inform­a­tion in crim­inal cases.

Legis­la­tion intro­duced in Congress, the State Secrets Protec­tion Act, would accom­plish these steps and guard against abuses of the priv­ilege. Momentum behind this legis­la­tion flagged after the admin­is­tra­tion announced its new policy, as lawmakers waited to see whether the policy would result in a new approach. But the House Judi­ciary Commit­tee recently took up the legis­la­tion and passed it out of commit­tee. The Senate should follow the House’s lead. It’s time for Congress to draw a line, once and for all, between valid priv­ilege claims that keep our nation safe and misuses of the priv­ilege that simply keep us in the dark.