Professor Robert Chesney testified before Senate Judiciary Committee

February 22, 2008

In late January, Professor Robert Chesney participated in a panel discussion of the state secrets privilege, sponsored by the Constitution Project at the National Press Club in Washington. Shortly thereafter, Senators Specter and Kennedy introduced a reform bill. In the shadows of Roger Clemens testimony before the House committee, on the same day Chesney was asked to testify before the Senate Judiciary Committee regarding his views of the pros and cons of the legislation. Chesney is now in the process of responding to follow up questions from committee staff, as well as converting his written testimony into a law review article.

For some time now, controversy has been brewing with respect to something known as the state secrets privilege. This is a common law evidentiary privilege with constitutional overtones, enabling the government to object to discovery of information that if revealed publicly would harm national security or diplomacy. In some instances, it can even be the basis for dismissal of suits. The privilege has played a critical role in shortcircuiting litigation over the NSA's domestic surveillance activities, as well as lawsuits concerning the practice of extraordinary rendition. As a result of increased media and scholarly scrutiny, Congress is now beginning the process of codifying and reforming the privilege.