Constitutional & Legal Issues

State Secrets Privilege

The Federation of Americn Scientists' Project on Government Secrecy maintains a Website of "Selected Case Files" on the use of the state secrets privilege at: http://www.fas.org/sgp/jud/statesec/index.html. See also, Georgetown Law State Secrets Archives at: http://www.law.georgetown.edu/cnsl/ssa/.

Finn, Peter. "Suit Dismissed against Firm in CIA Rendition Case." Washington Post, 9 Sep. 2010, A2. [http://www.washingtonpost.com]

By a 6-5 decision on 8 September 2010, the U.S. Court of Appeals for the 9th Circuit "dismissed a lawsuit seeking damages" from Jeppesen Dataplan, a Boeing subsidiary, "that worked with the CIA as part of its 'extraordinary rendition' program." The court ruled "that the government's decision to invoke the 'state secrets' privilege means that the case cannot go forward." See also, Charlie Savage, "Court Dismisses a Case Asserting Torture by C.I.A.," New York Times, 8 Sep. 2010.

Fisher, Louis. In the Name of National Security: Unchecked Presidential Power and the Reynolds Case. Lawrence, KS: University Press of Kansas, 2006.

Prados, I&NS 23.3 (Jun. 2008), declares that "[t]here is no study with comparable depth and dexterity on the whole question of the state secrets doctrine." The author's analysis of United States v. Reynolds (decided by the Supreme Court in 1953) "is exhaustive to a fault, but the result is quite valuable.... This book will be fascinating for legal scholars but a tough read for the rest of us."

Garvey, Todd, and Edward C. Liu. The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation. Washington, DC: Congressional Research Service, Library of Congress, 16 Aug. 2011. Available at: http://www.fas.org/sgp/crs/secrecy/R41741.pdf.

From "Summary": "This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice."

Hsu, Spencer S. "Defense Secretary Robert Gates, CIA Director Leon Panetta, Director of National Intelligence James Clapper Defend 'State Secrets' Claim in al-Aulaqi Suit." Washington Post, 25 Sep. 2010. [http://www.washingtonpost.com]

"In a 60-page filing, the government asked U.S. District Judge Robert Bates to dismiss a lawsuit filed by civil rights groups retained" by the father of U.S.-born cleric Anwar al-Aulaqi "seeking to block his Yemen-based son's placement on the CIA and Joint Special Operations Command capture-or-kill list of suspected terrorists. The filing also asked the court to dismiss the case without debating the merits of any future actions potentially taken against Aulaqi on the grounds that targeting in wartime is a matter for presidents, and that Aulaqi's father did not have legal standing to bring the case."

Liptak, Adam. "Appeals Court Upholds Dismissal of Abuse Suit." New York Times, 3 Mar. 2007. [http://www.nytimes.com]

On 2 March 2007, the U.S. Court of Appeals for the Fourth Circuit ruled that Khaled el-Masri, a German citizen of Lebanese descent who alleges kidnapping and abuse by the CIA, "cannot seek redress in court because his lawsuit would expose state secrets." The opinion was written by Judge Robert B. King for the court's unanimous three-judge panel.

Liu, Edward C. The State Secrets Privilege and Other Limits on Litigation Involving Classified Information. Washington, DC: Congressional Research Service, Library of Congress, 28 May 2009. Available at: http://www.fas.org/sgp/crs/secrecy/R40603.pdf.

From "Summary": "In the 111th Congress, House and Senate versions of bills entitled “the State Secrets Protection Act,” H.R. 984 and S. 417, have been introduced to codify the privilege. The bills would additionally limit the privilege to cases where significant harm to national security was presented, require judicial review of the actual information claimed to be privileged, and require the Attorney General to report to Congress within 30 days of any invocation of the state secrets privilege."

Lyons, Carrie Newton. "The State Secrets Privilege: Expanding Its Scope Through Government Misuse." Lewis & Clark Law Review 11 (2007): 99-132.

"The state secrets privilege can be a useful and necessary tool to protect information that cannot be disclosed without endangering national security. The government, however, by expanding the scope of the privilege and making blanket assertions to dismiss cases at the outset, is misusing the privilege and deviating from the conception of the privilege outlined in Reynolds."

Shane, Scott. "Invoking Secrets Privilege Becomes a More Popular Legal Tactic by U.S." New York Times, 4 Jun. 2006. [http://www.nytimes.com]

"Facing a wave of litigation challenging its eavesdropping at home and its handling of terror suspects abroad, the Bush administration is increasingly turning to a legal tactic that swiftly torpedoes most lawsuits: the state secrets privilege."

Weaver, William G., and Robert M. Pallitto. "State Secrets and Executive Power." Political Science Quarterly 120, no. 1 (Spring 2005): 85-112.

According to Aftergood, FAS "Selected Case Files," "The authors conclude that the state secrets privilege is increasingly subject to abuse and is wrongly used to protect the executive branch from embarrassment, to hide criminal activity, and to thwart legal requests for information."

Zagel, James. "The State Secrets Privilege." Minnesota Law Review 50 (1965-1966): 875-910. [Calder]

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