State Secrets Privilege - Calls For Reform

Calls For Reform

In recent years, a number of commentators have called for legislative reforms to the state secrets privilege. These reforms center around several ideas:

1. Requiring judges to review each piece of evidence that the executive claims is subject to the privilege.
2. Requiring the executive to craft alternative evidence that is not subject to the privilege, for the opposing party to use in place of the original, privileged evidence. Such substitute evidence should only be required when it is possible to do so without harming national security.
3. Prohibiting courts from dismissing claims on the basis of the state secrets privilege until after they have reviewed all available evidence.
4. Permitting the court to appoint an outside expert to scrutinize the evidence for national security content.
5. Excluding illegal government action from the definition of "state secrets," or otherwise allowing the court to address the legality (instead of just the secrecy) of government conduct. This would prevent the government from using the state secrets privilege to conceal its illegal conduct.

On January 22, 2008, Senators Edward Kennedy and Arlen Specter introduced S. 2533, the State Secrets Protection Act.