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On the Conflation of the State Secrets Privilege and the Totten Doctrine

D. A. Jeremy Telman

Valparaiso University Law School

December 19, 2012

American University National Security Law Brief, Forthcoming
Valparaiso University Legal Studies Research Paper No. 12-18

The state secrets privilege (SSP) has become a major hindrance to litigation that seeks to challenge abuses of executive power in the context of the War on Terror. The Supreme Court first embraced and gave shape to the SSP as an evidentiary privilege in a 1953 case, United States v. Reynolds. Increasingly, the government relies on the SSP to seek pre-discovery dismissal of suits alleging torts and constitutional violations by the government. Lower federal courts have permitted such pre-discovery dismissal because they have confused the SSP with a non-justiciability doctrine derived from an 1875 case, Totten v. United States. The Totten doctrine only applies to claims brought by people who have entered into voluntary relationships with the government, but it is now being invoked when the government seeks dismissal of tort claims through the SSP. While the government should invoke the SSP whenever necessary to prevent disclosure of information that might jeopardize national security, such invocations of the SSP should never result in pre-discovery dismissal.

Number of Pages in PDF File: 13

Keywords: State Secrets Privilege, Contracts, Government Contracting, Totten, Extraordinary Rendition, Torture, Immunity, Secrecy, Classified Information, Pre-Discovery Dismissal, Evidenciary Privileges, Non-Justiciability

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Date posted: December 19, 2012 ; Last revised: January 6, 2013

Suggested Citation

Telman, D. A. Jeremy, On the Conflation of the State Secrets Privilege and the Totten Doctrine (December 19, 2012). American University National Security Law Brief, Forthcoming; Valparaiso University Legal Studies Research Paper No. 12-18. Available at SSRN: http://ssrn.com/abstract=2191656

Contact Information

D.A. Jeremy Telman (Contact Author)
Valparaiso University Law School ( email )
656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
219-465-7811 (Phone)
219-465-7872 (Fax)
HOME PAGE: http://www.valpo.edu/law/faculty/jtelman/
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