State Secrets Protection Act Passes House Subcommittee on Constitution Civil Rights and Civil Liberties

The subcommittee also adopted an amendment that would limit the ability of outside parties to appeal a district court’s decision on whether the privilege was properly asserted.
 

Before the vote the Subcommittee held a hearing [3] in which most witnesses spoke in favor of the bill.   Asa Hutchinson, a former member of the House of Representatives from Arkansas and undersecretary of the Department of Homeland Security, shared concerns [4] about broad application and potential for misuse of the state secret privilege. Hutchinson testified, "Over the past twenty years, courts have dismissed at least a dozen lawsuits on state secrets grounds without any independent review of the underlying evidence that purportedly would be subject to this privilege. Not only does this create an incentive for overreaching claims of secrecy by the executive branch, but it has prevented too many plaintiffs from having their day in court."

Speaking at the same hearing, Ben Wizner, a staff attorney for the American Civil Liberties Union (ACLU), said the state secret privilege [5] has evolved from a means of protecting national security interest into "an alternative form of immunity that is increasingly being used to shield the government and its agents from accountability for systemic violations of the Constitution."

HR 984 restores judicial oversight by directing the White House to submit the information it deems a state secret to a federal judge who would conduct an independent review of the material.  The second reform would prevent the outright dismissal of an entire lawsuit without an independent review of the evidence deemed privileged.