State Secrets & Executive Accountability

27 Pages Posted: 23 Mar 2010 Last revised: 26 Oct 2010

See all articles by Christina E. Wells

Christina E. Wells

University of Missouri School of Law

Date Written: October 26, 2010

Abstract

This essay, part of a symposium on executive power, examines use of the state secrets privilege in the Obama administration. Specifically, it views the Obama administration’s approach to the state secrets privilege through the lens of “explanatory accountability” – i.e., the notion that executive officials must explain and justify their decisions or face negative consequences.

Although President Obama entered office criticizing the Bush administration’s overly broad assertions of the state secrets privilege, Obama officials nevertheless continued the Bush administration’s actions in various lawsuits. In response to sharp criticism, however, the Obama administration eventually revealed a new policy promising greater accountability and individualized decision-making regarding assertions of the state secrets privilege. In other words, the Obama administration embraced the notion of explanatory accountability by adopting the new policy.

While the Obama policy shows promise and moves toward greater accountability regarding assertions of the privilege – at least on paper – it is simply too vague to serve as an adequate mechanism of explanatory accountability. Furthermore, nothing in the policy requires Obama officials to justify their actions outside of the executive branch, thus allowing them to continue the Bush administration’s trend of broadly asserting the state secrets privilege with little or no justification. Such actions will continue unless the state secrets privilege is substantially altered to give courts the tools to serve as adequate accountability mechanisms. Pending congressional legislation may provide courts with such tools.

Suggested Citation

Wells, Christina E., State Secrets & Executive Accountability (October 26, 2010). Constitutional Commentary, Vol. 26, pp. 625-50, University of Missouri School of Law Legal Studies Research Paper No. 2010-09, Available at SSRN: https://ssrn.com/abstract=1576578

Christina E. Wells (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
323
Abstract Views
3,089
Rank
171,100
PlumX Metrics