An update on state secrets privilege use and abuse by the Bush and Obama administrations. Senators Leahy (D), Specter (R), Feingold (D) and Kennedy (D) have proposed the State Secrets Protection Act to curtail the unjust and unchecked application of the state secrets privilege as invoked by the Bush and Obama administrations. The legislation does not abolish the privilege, but rather codifies when the government can use it, and allows greater judicial oversight of its application. This is a good law that should definitely be enacted. Among the provisions of the proposed legislation, as per Sen. Leahy’s press release:
- Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense
- Provide a uniform set of procedures for federal courts considering claims of the state secrets privilege
- Address the crisis of legitimacy surrounding the privilege by setting clear rules that take into account both national security and the Constitution
One of the pillars of the Constitution of the United States is the imposition of checks and balances by and for each branch of government. Oversight is crucial in a transparent, just society. This law will correct some legal/philosophical flaws in the potential of the privilege that the Supreme Court granted in United States v. Reynolds in 1953.