CRS — The State Secrets Privilege: Preventing the Disclosure of .

The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation (PDF)
Source:Congressional Research Service (via Federation of American Scientists)

The state secrets privilege is a judicially created evidentiary privilege that allows the union authorities to resist court-ordered disclosure of data during litigation if there is a reasonable risk that such disclosure would damage the internal certificate of the United States.

Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court laid out a two-step process to be used when evaluating a title of favour to protect state secrets. First, there must be a formal title of privilege, lodged by the question of the section which has dominance over the matter, after actual personal consideration by that officer. Second, a court must independently decide whether the circumstances are allow for the title of privilege, and yet do so without forcing a disclosure of the real thing the favour is designed to protect. If the prerogative is appropriately invoked, it is inviolable and the revelation of the fundamental information cannot be compelled by the court.

A valid invocation of the privilege does not necessarily require dismissal of the claim. In Reynolds, for instance, the Supreme Court did not dissolve the plaintiffs` claims, but rather remanded the face to decide whether the claims could proceed absent the privileged evidence. Yet, significant controversy has arisen with regard to the head of how a subject should keep in light of a successful claim of privilege. Courts have varied greatly in their willingness to either grant government motions to fire a title in its entirety or leave a lawsuit to go "with no consequences save those resulting from the passing of evidence." Some courts have taken a more moderate view of the consequences of a valid privilege, holding that the privilege protects only specific pieces of privileged evidence. In contrast, other courts have taken a more expansive view, arguing that the privilege, with its constitutional underpinnings, often requires deference to executive branch assertions and ultimate dismissal. Dismissal of a title under the privilege often leaves a company with no other available remedy.

The state secrets privilege arises in a broad range of cases, generally where the administration is a suspect or where the administration has intervened in a lawsuit between private parties to prevent the revelation of state secrets. Recently, the favour has been characterized by a bit of high- profile assertions-including invocation of the favour to fight against claims arising from the government`s "extraordinary rendition" practices, challenges to the terrorist surveillance program, and claims against various national security agencies for unlawful employment practices. The administration has also intervened and invoked the favor in a substantial amount of cases involving claims against government contractors. The Supreme Court is currently considering a complex government contracting case that has the voltage to affect the consequences of a valid privilege in cases where the statement of the privilege acts to suppress a party`s ability to fight against an activity of the union government.

This paper is intended to deliver an overview of the protections afforded by the state secrets privilege; a word of about of the many unresolved issues associated with the privilege; and a choice of high-profile examples of how the favour has been applied in practice.

• Share this:
• Share