Although the state secrets privilege is not much in the news at the moment, it continues to percolate in the law review literature.
The privilege, narrowly conceived, is a way for the government to block the introduction in court of specific pieces of evidence that it deems too sensitive for disclosure. But in recent years, the invocation of the privilege has led to the termination and dismissal of entire cases.
Last September, Attorney General Holder established new internal procedures to “ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible.”
But “the new policy cannot serve as an adequate accountability mechanism,” according to a new law review paper, particularly since “nothing in the policy compels administration cooperation with courts once the state secrets privilege is asserted.” See “State Secrets and Executive Accountability” by Christina E. Wells, Constitutional Commentary, forthcoming.
“Between 2001 and 2009 the government asserted state secrets in more than 100 cases,” a much higher count than previously reported, “while in scores more litigants appealed to the doctrine in anticipation of government intervention.” See “The Shadow of State Secrets” by Laura Donohue, University of Pennsylvania Law Review, forthcoming.
Another pending law review paper of interest, though not specifically on the state secrets privilege, is “A New Era of Openness? Disclosing Intelligence to Congress Under Obama” by Kathleen Clark, Constitutional Commentary, forthcoming.