Below is a column I originally wrote and published in The Jurist, a journal dedicated to our legal system, about my support for Congress’s efforts to reform what is known as the “state secrets privilege.” While I believe the state secrets privilege has an important role to play, I also believe it needs clear oversight, as I argue below.
During his recent national security speech, President Obama boldly declared that the values enshrined in the Constitution are our best national security assets. In pledging to restore the basic American principles of due process, accountability, and checks and balances, the president identified as a top priority the need to reform the state secrets privilege – a doctrine that allows the executive branch to withhold information requested during litigation if disclosure threatens national security. I served in the executive branch as a top law enforcement official and a former federal prosecutor. While an aggressive approach to national security matters is critical for our nation, it is just as essential that there be oversight and checks on the power of the executive branch in national security when the use of such power impacts every day citizens.
While the president’s commitment to reforming the state secrets privilege is encouraging, his proposed remedy – limiting the occasions on which the executive branch asserts the privilege – falls short. The real solution lies in ensuring that federal judges independently review invocations of the privilege. Congress has begun taking steps towards implementing such reform. Bills are now pending in both houses, and on June 4th, I will testify before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, in support of congressional action to reform the state secrets privilege.
There are two fundamental problems with the state secrets privilege. First, when courts simply defer to assertions of secrecy by the executive branch without independently reviewing the evidence claimed to be secret, there is a significant risk that the government may seek to hide evidence of its misconduct under the guise of protecting national security. This exact situation occurred in United States v. Reynolds, the Supreme Court case that first recognized the evidentiary state secrets privilege. Later declassification of the accident report at issue in Reynolds revealed no state secrets, only evidence of negligence.
Second, the government has used the privilege as a means to foreclose an entire category of litigation, namely lawsuits alleging government misconduct in national security policies, such as wiretapping, detention, and interrogation programs. The result is an unreasonable limitation on access to the courts. Cases involving legitimate constitutional questions on national security programs and illegal surveillance have been dismissed at the outset, without plaintiffs having any opportunity for a day in court to test their allegations.
As the state secrets privilege has evolved into a new type of immunity doctrine, it has compromised our values and created an air of suspicion. The proposed State Secrets Protection Act would enact two important reforms to address these problems. First, the legislation would restore judicial oversight by requiring the executive branch to submit the evidence asserted to be privileged to the judge for an independent review. Second, it would prohibit judges from dismissing cases on the basis of the state secrets privilege at the outset without the opportunity for a review of the evidence.
These reforms would ensure that the courthouse doors remain open, while ensuring sensitive national security information is kept secret. They would also restore accountability and dispel any notion that the government is invoking the privilege as a cover up.
The proposed reforms would also keep us safe. It is important to recognize the difference between judicial review and public disclosure. Federal judges regularly conduct private reviews of evidence, and Congress is capable of devising safeguards to ensure that judicial oversight does not result in public disclosure. Moreover, federal judges are experienced in reviewing sensitive national security information under the Foreign Intelligence Surveillance Act, the Freedom of Information Act, and the Classified Information Procedures Act.
For these reasons, I have joined with the Constitution Project’s bipartisan coalition of policy experts, legal scholars and former government officials in support of the proposed reforms.
The urgency of protecting our national security is clear. But the shadow cast by 9/11 should not forever obscure what is fundamentally American, namely due process, accountability, transparency, and checks and balances. Where Congress can achieve several goals at the expense of none, it should. Judicial review will keep us safe, ensure trust in our executive branch and provide an appropriate check on the executive power bestowed by the state secrets privilege. To achieve these gains, Congress should enact this important legislative reform.