The Shadow of State Secrets
State secrets doctrine catapulted to prominence post-2001, as the executive responded to lawsuits alleging a range of constitutional and human rights violations by refusing to disclose information during discovery and, in some cases, requesting dismissal of suits altogether on national security grounds. More than 120 law review articles followed, and media outlets became outspoken in their criticism of the privilege. In both the Senate and the House, new bills sought to codify what had previously been a common law doctrine. And in September 2009, the Attorney General introduced new procedures for review and created a State Secrets Review Committee.
Despite the sudden explosion in scholarship and other attention paid to state secrets, very little is known about how the privilege actually works. The research serving as a basis for much of the discussion focuses narrowly on published judicial opinions in which the U.S. government has invoked the privilege and the courts have ruled on it. Myriad concerns follow.
First and foremost, such analyses reveal very little about how the executive branch actually uses the privilege—who invokes it, under what circumstances it is invoked, how frequently it has been threatened, and to what end. Put simply, there is a logical disconnect between looking at how courts rule in their final, published opinions on state secrets and drawing conclusions about the executive branch’s practices.
Second, the narrow focus on the outcome of published cases sheds little light on how the doctrine operates—how it influences the course of litigation, the range of cases in which it is used, or how parties respond, such as by dropping suits early in the process in the face of the threatened or actual invocation of the privilege.
Third, current scholarship provides a truncated view of how the courts deal with assertion of the privilege. Omitted are the many cases in which the court sidesteps the question altogether or dispenses of the state secrets questions at an early stage in the litigation. Absent, too, are unreported and unpublished opinions (which constitute around eighty percent of the appellate courts’ caseload), as well as sealed memoranda and opinions. The resultant lack of baseline analysis makes it difficult to conclude how the judiciary treats the privilege, as well as what variation occurs between the circuits.
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Stephen B. Burbank & Tobias Barrington Wolff