When officials in the Bush administration want to stop a plaintiff from obtaining evidence, they often simply declare that evidence a state secret. They have called on this option some 25 percent more times each year than any previous administration since the U.S. Supreme Court first recognized the state secrets privilege in 1953. Recently, Bush officials have used it to block lawsuits accusing the government of violating the Foreign Intelligence Surveillance Act, including an American Civil Liberties Union suit challenging the warrantless interception of U.S. citizens' communications with people in other countries.
In January, responding to fears that this practice harms citizens' rights, Sens. Ted Kennedy (D-Mass.) and Arlen Specter (R-Pa.) introduced the State Secrets Protection Act. The problem with the state secrets doctrine, a press release from Kennedy's office explained, "is that sometimes plaintiffs may need that information to show that their rights were violated. If the privilege is not applied carefully, the government can use it as a tool for cover-up, by withholding evidence that is not actually sensitive."
The Kennedy-Specter bill would require federal courts to review any invocation of the state secrets privilege in a civil suit, looking not just at government affidavits but at the evidence underlying them. (As state secret law is now practiced, court review is generally not required.) It would also require the attorney general to report to both the House and Senate on any civil case in which the government invokes the privilege. As of early February, the bill was being considered by the Senate Judiciary Committee.