Rethinking the State Secrets Privilege

By Jamie Attard, staff editor The Supreme Court blog recently reported that the Supreme Court will hear two cases related to the “state secrets” privilege this term.  This privilege allows the United States government to dismiss litigation cases on the grounds of national security.  The premise behind such a power is that certain cases, if tried in a civilian court, would reveal sensitive information to the public that would jeopardize national security.  Although this privilege is justified, the manner of its execution can too easily be abused.

The Supreme Court established the precedent of the state secrets privilege in its landmark 1948 decision in United States vs. Reynolds.  The case related to the death of nine Air Force officers in a B-29 airplane crash in Georgia.  A negligence suit was filed against the federal government in relation to the crash, however the case was dismissed.  The Supreme Court upheld the refusal by the government to provide the accident report on the grounds that it would endanger national security by revealing military secrets.  When the accident report was released in 1996, it did not contain any military secrets, only clear evidence of government negligence.

The New York Times reports that this privilege continues to be regularly invoked.  The Bush administration repeatedly asserted this privilege in a number of cases that challenged the legality of extraordinary renditions and warrantless surveillance.  Most recently the United States Court of Appeals dismissed a suit against a Boeing subsidiary.  The subsidiary was accused of arranging flights for the Central Intelligence Agency as part of prisoner interrogation measures.

The government should be allowed to uphold national security, but in a manner that promotes justice and accountability.  Four alternative scenarios should be considered to address the government’s unilateral power over restricting information presented to courts.  The first is currently being evaluated by Congress; H.R. 984: State Secret Protection Act of 2009 would require all sensitive material to be presented to a court judge, to affirm whether public disclosure of the information would jeopardize national security.  The second alternative would require all state secret cases to be heard by a special closed tribunal, for which the transcripts would be made publicly available later, once the sensitive information had been declassified.  The third alternative proposed by the American Bar Association, would require the executive to substitute alternative non-sensitive evidence that is not subject to the privilege.  The fourth alternative proposed by Robert Chesney, a UT Law Professor, would permit the court to appoint an outside expert to evaluate state secret evidence.

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