CRS Report on the State Secrets Privilege and Other Limits on Litigation Involving Classified Information

From The State Secrets Privilege and Other Limits on Litigation Involving Classified Information (May 28, 2009):

The state secrets privilege is a judicially created evidentiary privilege that allows the government to resist court-ordered disclosure of information during litigation, if there is a reasonable danger that such disclosure would harm the national security of the United States. The Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds. In its opinion, the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. Second, a court must independently determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court.

The Classified Information Procedures Act (CIPA) provides pretrial procedures that permit a trial judge to rule on questions of admissibility involving classified information before introduction of the evidence in open court. The use of classified evidence may also implicate criminal defendants rights to exculpatory information and witnesses statements held by the prosecution, or their right to confront witnesses under the Sixth Amendment.

Congressional action may affect the operation or coverage of the state secrets privilege. In 2008, a federal district court held that the Foreign Intelligence Surveillance Act supplanted the state secrets privilege with respect to civil claims of unlawful electronic surveillance. In the 111th Congress, House and Senate versions of bills entitled the State Secrets Protection Act, H.R. 984 and S. 417, have been introduced to codify the privilege. The bills would additionally limit the privilege to cases where significant harm to national security was presented, require judicial review of the actual information claimed to be privileged, and require the Attorney General to report to Congress within 30 days of any invocation of the state secrets privilege.

[JH]