Federal Evidence Review

Legislation would establish new procedures for a court to consider a state secret claim

On February 11, 2009, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 417, the State Secrets Protection Act. See 155 Cong. Rec. S2155-S2159 (Feb. 11, 2009) (Sen. Leahy statement upon introduction). The Senate Judiciary Committee was scheduled to consider the measure last week but the matter was put over. The committee is expected to markup the bill in the near future. In introducing the legislation, Chairman Leahy explained its purpose:

“The State Secrets Protection Act will help guide the courts to balance the Government's interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government's ability to assert the privilege in appropriate cases. Rather, the bill would allow judges to look at the actual evidence the Government submits so that they, neutral judges, rather than self-interested executive branch officials, would render the ultimate decision whether the State secrets privilege should apply. This is consistent with the procedure for other privileges recognized in our courts.”

Under the legislation, “state secret” includes “any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States.” The measure provides for judicial review of a claim of a state secret which are patterned on the Classified Information Procedures Act. The United States may intervene in any action to assert a state secret. The court would review the matter and may impose a protective order. The government may take an interlocutory appeal before or during the trial, among other provisions. When the committee takes up the measure, it will be noteworthy what form the legislation takes.

In the prior Congress, similar legislation was introduced in the House of Representatives as H.R. 5607, by Rep. Jerrold Nadler, of New York, and in the Senate as S. 2533, by Senator Edward Kennedy, of Massachusetts. See 154 Cong. Rec. E392 (Mar. 13, 2008) (Rep. Nadler statement on introduction); 154 Cong. Rec. S198-S201 (Jan. 23, 2008) (Sen. Kennedy statement on introduction). The House bill was referred to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, without further action. The Senate measure was reported out by the Senate Judiciary Committee. See Sen. Rep. No. 442, 110th Cong., 2d Sess. (2008). Neither the House nor Senate took up the legislation.

For a recent case considering the state secret privilege under common law, see the post on Ninth Circuit Holds Court Should Determine Whether State Secret Privilege Applies.