Revisiting the State Secrets Privilege

A new assessment of the “state secrets privilege” disputes the claim presented in several other recent critiques that government reliance on the privilege to curtail or terminate sensitive litigation has increased in recent years.

“I find that the Bush Administration does not differ qualitatively or quantitatively from its predecessors in its use of the privilege,” concludes Robert M. Chesney in a forthcoming paper in the George Washington Law Review.

Along with a survey of the origins and the history of the state secrets privilege, the author, a law professor at Wake Forest University, challenges the contentions of legal scholars such as William Weaver and Louis Fisher who argue that there has been a distinct increase in use of the privilege.

In large part, the dispute reflects definitional differences regarding what constitutes a state secrets case, when the privilege is asserted, and how complete the available data are.

In a useful appendix to his paper, Prof. Chesney provides a tabulation of 89 opinions in which the state secrets privilege has been asserted since 1954. But these only include published opinions, a subset of the unknown total. And for technical reasons, he excludes some cases that have been previously cited as state secrets cases but includes others that have not been.

Fundamentally, he writes, “The reality is that we simply do not know, and have no way of finding out, just how frequently the privilege may have been asserted during any particular period.”

After reviewing how the government has used privilege over the years, he concludes that “the pattern of implementation of the state secrets privilege does not depart significantly from its past usage.”

Yet Prof. Chesney adds that “To say that the privilege has long been with us and has long been harsh is not to say, however, that it is desirable to continue with the status quo.”

He considers the feasibility of enacting reforms to limit or modify the assertion of the privilege and finds reason to conclude that such reforms may be appropriate, particularly “where the legality of government conduct is itself in issue.”

The abstract and a link to the full text of “State Secrets and the Limits of National Security Litigation” by Robert Chesney may be found here.

Professor Chesney blogs on national security law and policy at National Security Advisors.

“The state secrets privilege is too easy to abuse” wrote Louis Fisher in another new commentary for the Nieman Watchdog.

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