The Senate Judiciary Committee held a hearing yesterday on the Bush administration’s use of the state secrets privilege. Under the privilege, the government can keep information from becoming public if it believes that the data will harm national security. Witnesses at the hearing discussed the concept of privilege as well as a bill (S. 2533) introduced by Sen. Ted Kennedy (D-MA) that would require the Executive Branch to obtain approval from a federal court each time it invokes the state secrets privilege in a civil action. Under the measure, the Executive Branch would also be required to provide a report to Congress on each item within 30 days of invoking privilege.
Carl J. Nichols, deputy assistant attorney general at the Department of Justice, argued that the privilege is provided as a tool of the Executive Branch in the Constitution and should not be subject to judicial review.
Other witnesses disagreed. For example, Louis Fisher, specialist in Constitutional Law for the Library of Congress argued that all assertion of privilege should be subject to independent judicial review. In his testimony, Fisher said that courts should “be directed to treat executive claims about state secrets initially as an assertion, subject to independent judicial analysis. This definition protects the integrity of the courtroom and gives private parties the hope of fair treatment.”
Another witness, Michael A. Vatis, partner at Steptoe & Johnson in Washington, D.C., supported the bill but suggested that it should be extended to cover claims of executive privilege in addition to state secrets privilege. The bill, argued Vatis, should be written to include provisions explaining the jurisdiction courts have over executive privilege. “If the bill remains silent on this crucial issue, courts will likely struggle for years over the appropriate level of deference to accord Executive determinations,” said Vatis.