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The State of the State Secrets Privilege

November 20, 2009

Earlier this week, I attended an all-day conference on “The State of the State Secrets Privilege,” presented by the American University Washington College of Law Collaboration on Government Secrecy.

The organizers at CGS brought together quite the roster of experts on state secrets, with topics ranging from the historical background of the privilege, to the problem of its current use, to the prospects for legislative reform. Some panels included litigators from opposite sides of the courtroom.

In the interest of full disclosure, I do not have any legal training whatsoever.  I learned quite a bit from the great speakers on the program, but I left the conference yesterday even more firm in the belief that the state secrets privilege is a dangerous feature of executive power.

I say dangerous because the state secrets privilege has been used with increasing frequency in the past decade to conceal wrongdoing by government officials. Recently, the government has sought expanded authority to invoke the privilege, and courts have increasingly deferred to government claims, even in cases against private companies where the privilege is being used to conceal US-government sanctioned activities that may not have been legal or may have caused harm to individuals.

Of course, there are times when withholding evidence in litigation in the name of national security is justified, but the history of the privilege is far from stellar. Even the foundational 1953 Supreme Court decision US v. Reynolds, the first judicial recognition of the privilege, was actually an abuse of executive power. The widows of three civilian engineers who had perished when their B-29 Superfortress crashed in 1948 over Waycross, Georgia, sought damages in federal court. As part of the litigation, the state secrets privilege was used to bar admission of government documents about the incident as evidence in the proceedings, particularly the accident report.

In 2000, it was revealed that government’s claims about potential harm to national security from disclosing these documents in the Reynolds case were patently untrue. Instead, the declassified documents showed that the B-29 was in poor condition and that the military’s negligence was responsible for the crash. Even though judges are permitted to use in camera review and other tools to determine the applicability of the privilege, in this case, the judge deferred to the executive without further inquiry.

The Department of Justice established new policies and procedures on the state secrets privilege in September 2009, including a more stringent standard for its use and more detailed procedures for deciding when it should be invoked. However, in current litigation, the Department of Justice continues to defend the invocation of the privilege, even where it was the previous administration that invoked it.

Congress is considering ways to rein in this abuse of executive power. Approved by the Senate Judiciary Committee, the State Secrets Protection Act would require courts to make independent assessments of state secrets claims, among other things. The House Judiciary Committee is also considering measures, including a bill sponsored by Congressman Jerrold Nadler, who gave the keynote address at yesterday’s conference.

To learn more about the current state of the state secrets privilege:

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