ACSBlog: The Blog of the American Constitution Society

Former U.S. Court of Appeals Judge (and ACS Board Member) Patricia Wald testified on the ability of federal judges to administer the state secrecy privilege "in a manner that will not endanger national security" while permitting litigants "to the maximum degree feasible to pursue valid civil claims for injuries" before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

The time is now ripe for [Congress to legislate regarding the secrecy privilege] in the civil arena; litigants and their counsel are confused and unsure as to how to proceed in cases where the government raises the privilege; the courts themselves are confronted with precedent going in many different directions as to the scope of their authority and the requirements for exercising it.

Judge Wald discussed seven principles to consider regarding enacting of state secrecy privilege legislation.

* It "is ultimately a matter for the judge, not the government to decide" whether the evidence sought to be withheld by the government presents "a reasonable danger" to the national defense or foreign relations. Judge Wald notes that judges deal with national security information on a regular basis, and that courts should continue their role of "constitutional guardianship" to ensure that the secrecy privilege will not be "too lightly invoked."

* "State secrets legislation should require the judge to himself or herself review the material before making a decision on whether the privilege applies." Judges already inspect secret material in camera; it's the only way to "fulfill the judicial obligation to insure a fair hearing" as well as to determine whether there are alternate ways to present the material that meets the plaintiff's needs without impugning national security.

* The legislation should emphasize "judicial flexibility and creativity in finding alternatives to the original material that will permit the case to proceed whenever possible."

* There should be additional "judicial flexibility" in cases where state secrets claims are raised, both in allowing a party disadvantaged by nondisclosure to supplement their case by additional discovery whenever it could reasonably bolster their case, and to allow maximum access to non-secret discovery or even postponement of the standing decision until the secrecy claim is decided.

* "In general, every effort should be made to provide the regular counsel with the necessary clearance to litigate the claim, and where that turns out to be impossible to substitute counsel who have such clearances." Judge Wald notes that in some cases, the validity of the secrets claim can be litigated at a level where special clearances are not required. Regarding the court, Judge Wald explains that "judges are used to handling confidential material though sealing, protective orders against disclosure by counsel, screened masters, and in camera or even ex parte submissions."

* Dismissal of a private party claim should be a "last resort if it is based on the unavailable of state secret evidence." Even so, it is worth examining whether to grant compensatory remedies to the injured party in those cases. Also, compensation may be appropriate where a secrets claim is upheld at the same time the court finds government misbehavior.

Here is more information on the pending legislation.