State Secrets Privilege Reforms Return

On October 23rd, 2013, Congressmen John Conyers, Jerrold Nadler, and Tom Petri reintroduced the State Secrets Protection Act, legislation that would allow courts to conduct independent assessments of the government’s state secrets privilege claims and provide a much-needed arbiter in the balance between legitimate national security secrets and the community’s track record of excessive secrecy.

OTG’s coalition partner the Electronic Frontier Foundation (EFF) describes the state secrets privilege as “a legal tool that started as a limited shield intended to protect legitimate and critical government national security secrets, but which the government has attempted to turn into a sword to block Americans seeking to enforce the law and the Constitution.” The privilege has been used to dismiss lawsuits on the basis that litigation would endanger national security.  As documented in this year’s Secrecy Report, EFF notably overcame the government’s assertion of state secrets privilege in Jewel vs. NSA to continue its challenge of the US government’s communications surveillance and collection programs.

Following this summer’s revelations, President Obama said he “welcomes debate,” over the administration’s surveillance programs. This debate should not only be able to take place within the public but also in the courts—something the State Secrets Protection Act would help facilitate. 

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