On July 31, the House Judiciary Committee heard testimony concerning the State Secrets Protection Act (H.R. 5607), sponsored by Rep. Jerrold Nadler (D-NY), which would grant the judiciary greater authority to question executive branch secrecy. The act would establish a set of procedures and standards for assessing executive branch claims to the state secrets privilege.

Openness advocates have argued that abuse of the state secrets privilege has severely undermined government accountability in recent years. During his testimony, Steven Shapiro of the American Civil Liberties Union (ACLU) stated, "Over the years we have seen the state secrets privilege mutate from a common-law evidentiary rule … into an alternative form of immunity that is used more and more often to shield the government and its agents from accountability for systemic violations of the Constitution and core human rights principles."

Over the past seven years, the executive branch has gained what appears to be an upper hand on controlling information when civil actions have touched upon a claimed secret; the courts have rarely questioned claims of state secrets and have almost universally dismissed cases based on the claims. Meredith Fuchs of the National Security Archive commented upon this fact, stating, "The information that is claimed to be secret is controlled by a system in which there is a strong incentive to keep it from the public, especially if the government is overreaching or has engaged in some misconduct."

Since Sept. 11, 2001, courts have frequently assumed that only an agency has sufficient knowledge and expertise to understand the implications of secret information. Hence, the courts have been extremely deferential to the executive branch's stated need to keep information from being made public or even examined by a court. However, Shapiro argued that the courts are a "constitutional safety valve," a role that several laws have affirmed, including the Classified Information Procedures Act (CIPA), Freedom of Information Act (FOIA), and the Foreign Intelligence Surveillance Act (FISA).

The Nadler bill is based upon CIPA standards for the use of classified information in criminal cases. In civil cases, the court would review information that the government seeks to protect as well as evidence supporting the government's request for protection. The court would then make a decision assessing the likelihood that harm would result from evidence disclosure. Shapiro explained that H.R. 5607 "restores the state secrets privilege to its common law origin as an evidentiary privilege by prohibiting the dismissal of cases prior to discovery." Fuchs also supported the bill, arguing, "These procedures have worked well in the criminal CIPA context."

Similar legislation (S. 2533) was introduced in the Senate in January by Sen. Ted Kennedy (D-MA) and was referred to the Judiciary Committee; no action has yet been taken.

Attorney General Michael Mukasey has threatened that President Bush would veto S. 2533. In his March 2008 letter to the Senate committee, Mukasey elaborated on the administration's opposition to increased court authority by questioning Congress's own authority to alter the state secrets privilege. The administration argues that the privilege is protected by the Constitution and surrounding case law including United States v. Nixon. However, there is also case law that contradicts this argument, particularly the U.S. Supreme Court's decision in New York Times v. U.S. to protect the public release of the Pentagon Papers leaked by Daniel Ellsberg in light of government misconduct and administrative abuse of power.

The state secrets privilege was first recognized in 1953 by the Supreme Court in United States v. Reynolds. Ever since, the executive branch has used it to maneuver around traditional checks and balances. The executive branch has utilized this privilege increasingly since the events of Sept. 11. According to a September 2007 report by OpenTheGovernment.org, "the administration used the privilege only 6 times between 1953 and 1976. Since 2001, it has been used a reported 39 times — an average of 6 times per year in 6.5 years that is more than double the average (2.46) in the previous 24 years."

Fuchs stated that the bill "provides substantial protection to the government's interest in maintaining secrecy" while also "protect[ing] against government overreaching." The legislation was introduced in March, and July 30 marked the first hearing on the bill. The bill has seven co-sponsors, six Democrats and one Republican.