Sharon Bradford Franklin [Senior Counsel, the Constitution Project]: "The State Secrets Protection Act (S. 2533), introduced this week by Senators Kennedy and Specter, would bring much needed reform to the state secrets privilege. The doctrine has been problematic since it was first recognized by the U.S. Supreme Court in 1953 in United States v. Reynolds. In that case, the widows of three civilian contractors who were killed in the crash of a military plane sought production of the Air Force accident report. The Supreme Court refused to require the executive branch to turn over the accident report to the district court judge for an independent assessment of whether the report did indeed contain state secrets, concluding that forcing the government to disclose information it claimed was sensitive created an unacceptable risk to national security. However, more than four decades later, the Air Force declassified the accident report, revealing that it did not in fact contain sensitive security information, but only evidence of the government's negligence.

Moreover, since its inauspicious beginnings in the Reynolds case, this privilege has been expanded almost beyond recognition. Rather than simply applying the doctrine to prevent the disclosure of particular pieces of evidence, more recent court decisions have foreclosed any litigation of cases in which the state secrets privilege is asserted. For example, in the El-Masri case decided last year by the U.S. Court of Appeals for the Fourth Circuit, the court dismissed the case at the pleadings stage, before any discovery had occurred. Mr. El-Masri, an innocent victim of the United States' extraordinary rendition policy, had filed his lawsuit to challenge his imprisonment and abuse by the CIA.

The Senate bill would provide three critical and much-needed reforms to the state secrets privilege. First, the bill would prohibit reliance on a state secrets claim to dismiss a case at the pleadings stage — as has happened in cases like El-Masri. Rather, whenever the executive branch asserts the state secrets privilege, courts would be required to first conduct a closed hearing to examine the allegedly secret evidence, and determine whether the privilege should apply.

Second, the bill would require that when the executive branch asserts the privilege, it must provide all allegedly secret evidence to the judge for in camera review. The judge is then required to make an independent assessment of each "specific item of evidence" to determine whether the state secrets privilege applies. This requirement for independent court review of the actual evidence is crucial — had such review been mandated in United States v. Reynolds, the judge would have discovered that there were no national security secrets contained in the disputed accident report.

The third significant reform in the bill is a requirement that if the judge concludes that an item of evidence legitimately contains state secrets, the judge must assess whether "it is possible to craft a non-privileged substitute" for the evidence "that provides a substantially equivalent opportunity to litigate the claim or defense." Such non-privileged substitutes could include a version of a document with privileged material redacted, or a summary of the privileged information. If the court finds it is possible to create such a substitute, the bill requires that the court "shall order" the executive branch to provide such a substitute to the opposing party. If the government refuses to comply with this order, the court would be required to decide the disputed issue in favor of the non-government party. This provision balances the need to preserve national security information with the rights of litigants challenging government policies, and would enable some litigation to proceed even where state secrets may be involved.

Beyond these three fundamental reforms, the bill also includes provisions to facilitate an in-depth review of executive branch state secrets claims by an independent judge. These include provisions authorizing the use of protective orders to secure sensitive information; the appointment of special masters who may have an expertise in national security matters to assist judges where appropriate; and the appointment of guardians ad litem with security clearances to represent the interests of non-government parties.

The Senate bill does, however, raise some concerns regarding its treatment of the toughest cases: those in which the judge concludes that state secrets are at issue, and it is not possible to create a non-privileged substitute for the evidence. The bill's procedures would decide such cases in favor of the government, by permitting their dismissal if litigating the case without the privileged evidence "would substantially impair the ability of a party to pursue a valid defense to the claim or counterclaim." Such cases raise important questions about how to balance national security concerns with the interests of justice and the need to provide an independent check to ensure that executive branch policies do not violate the constitution. Congress should carefully evaluate how best to craft this balance."