(Compiler's note: Absolutely must read this entire article. Please click on the title above.)

by Andrew M. Grossman

The misnamed State Secret Protection Act of 2009 (H.R. 984) is dangerous, in terms of both its effect on national security and the violence it would do to the constitutional separation of powers. Congress should be aware of the following key points:

• The state secrets privilege has a 200 year history in the United States and has existed in essentially its present form for 135 years. It has been used by every president since Lyndon Johnson, up to and including President Barack Obama.
• There is absolutely no evidence of abuse of the state secrets privilege. Data from 1954 through 2008 show that its use is rare. In reported opinions, the privilege was asserted just seven times in 2007, and three times in 2008.
• There is no evidence that the state secrets privilege is being used more frequently than in the past or in cases where it is not needed. There is no evidence that it is being used to stifle cases on political grounds. There is no evidence that judges are unduly deferential to the executive when it is asserted; the trend is actually in the opposite direction.
• The State Secret Protection Act would force the government to admit highly classified secrets, such as the identities of spies, in the course of litigation, putting national security at risk.
• The State Secret Protection Act would give activists a 'heckler's veto' over many national security programs created by the democratic branches of government.
• The State Secret Protection Act attempts to transfer powers clearly assigned to the President to judges, in violation of the Constitution. It is unconstitutional.
• The State Secret Protection Act is a cynical attempt by Congress to duck tough decisions in the national security arena--where bad decisions can have catastrophic consequences--by passing the buck to the courts.
• The state secrets privilege is only one of several 'immunities' that can bar litigation altogether. For example, courts have cited the Speech or Debate Clause to dismiss suits against Members of Congress and other legislators involving invasion of privacy, defamation, wiretapping, incitements to violence, age, race, and sex discrimination, retaliation for reporting sexual discrimination, and larceny and fraud.
• The modern application of the privilege was defined in a 1953 case, U.S. v. Reynolds. The Reynolds framework carefully balance the sometimes harsh results of the state secrets privilege--the exclusion of relevant evidence or dismissal of a claim altogether--with the genuine needs of U.S. national security.
• Seven separate requirements, including Department of Justice review and 'personal consideration' by high-ranking federal officials, ensure that the state secrets privilege is used only when necessary to protect national security. ....