Reforming the State Secrets Privilege
Since September 11, 2001, President George W Bush's Administration has repeatedly asserted the state secrets privilege as grounds for the dismissal of civil cases challenging the legality of its conduct in the war on terror. Specifically, the Administration has sought dismissal of all cases challenging two different government practices: (1) its use of "extraordinary rendition," under which the Executive removes suspected terrorists to foreign countries for interrogation; and (2) the National Security Agency's (NSA's) warrantless wiretapping of electronic communications. The government argues that the plaintiffs' claims in these cases can neither be proven nor defended against without disclosure of information that would jeopardize national security, and thus it seeks to have all cases related to these activities dismissed on the pleadings. This issue brief provides a general overview of the state secrets privilege and then discusses the Bush Administration's recent assertion of the privilege in cases challenging extraordinary rendition and the NSA's warrantless wiretapping program. As will be explained, the Administration's blanket invocation of the privilege as grounds for immediate dismissal of these categories of cases is unprecedented, and threatens to eliminate the judiciary's role as a check on executive action. For that reason, courts should seek methods of protecting privileged material without dismissing litigation, as they have successfully done in the past, to ensure that legitimate challenges to these and other government actions get a fair hearing in court. In addition, the next presidential administration should revise its internal procedures and work with courts to limit the effect of the state secrets privilege so that it is used as originally intended, rather than as a de facto attempt to immunize executive action from judicial review. Finally, Congress should move quickly to pass pending legislation that would prevent indiscriminate use of the state secrets privilege.
Amanda Frost & Justin Florence, Reforming the State Secrets Privilege, 3 Advance 111 (Spring 2009)