The "state secrets privilege" has been around for over half a century, but has never enjoyed the level of public prominence it enjoyed in recent years, thanks to the Bush administration's record-shattering reliance on it to block litigation targeting controverisal programs of warrantless surveillance and "enhanced" interrogation. The Obama administration has committed itself to a narrower view of the privilege, but—to the consternation of progressives—has thus far declined to walk back from the previous administration's broad assertions of privilege in any pending court cases. Now, Congress is proposing to take matters into its own hands with the reintroduction of the State Secrets Protection Act.

The aggressive invocation of state secrecy during the Bush era was raised during confirmation hearings for Attorney General Eric Holder, who has since made good on his pledge to order a review of cases in which the privilege has been asserted. But civil libertarians were incensed when Justice Department lawyers announced that the new administration would endorse their predecessors' argument that state secrecy foreclosed litigation in the case of Mohamed v. Jeppesen Dataplan, a suit brought against the company alleged to have flights for the CIA's "extraordinary rendition" of terror suspects to countries where they were subject to torture.

Members of Congress aren't waiting to see which way the new attorney general will jump in other pending cases. The State Secrets Protection Act, which stalled after being reported out of committee in 2008, has been reintroduced in both the House and Senate, and would provide guidelines for judges considering claims of state secrets designed to introduce heightened judicial scrutiny in an area where courts have traditionally been highly deferential to executive branch determinations.

Though the language in the House bill seems slightly more restrictive on its face, the two versions are broadly parallel. They urge courts to directly review in camera any material asserted to be shielded by national security and make its own determination of whether the privilege is validly invoked with respect to that material. When appropriate, courts are directed to request redacted versions of sensitive material that would enable a suit to proceed when full disclosure is not possible. Judges are also encouraged to require the government to process security clearances for litigants' attorneys in order to enable them to participate in closed hearings.

The traditional deference afforded the executive in national security cases is often justified by the argument that courts lack the competence to properly evaluate national security claims. The rejoinder of civil libertarians has long been: Then make them competent. Both bills suggest that courts "may appoint" (in the Senate version) or "shall consider" whether to appoint (in the House version) a "special master" qualified to determine the potential harm that would flow from the disclosure of information.

The Supreme Court first recognized the state secrets privilege in a 1953 case, United States v. Reynolds, in which the widows of military personnel sought infromation about the plane crash in which their husbands were killed. When the crash reports were finally declassified and released almost 50 years later, they appeared to contain precious little truly sensitive information. Had the Court then exercised the sort of review contemplated in the State Secrets Protection Act, the legal landscape of the past eight years might have looked very different indeed.