An Administrative Law Approach to Reforming the State Secrets Privilege
New York University School of Law
July 20, 2009
New York University Law Review, Vol. 84, December 2009
Over fifty years ago, in Reynolds v. United States, the Supreme Court recognized the Government’s right to invoke the common law state secrets privilege, which allows the Government to withhold evidence from discovery because its revelation would threaten the nation’s security. Decades later, the plaintiffs in the original case discovered that the Government had lied - no state secrets were contained in the document - and the privilege had been abused. Today, there continue to be concerns that the privilege is abused by Government officials. This Note begins by examining the history of the state secrets doctrine and its current problems. Part II then explores the leading proposal for change, which urges substantive judicial review of the actual documents the government claims to be privileged. This Part examines why this solution is unlikely to fully address the core problems of the privilege: the lopsided incentives that encourage the Government to abuse the privilege. Part III then proposes other mechanisms, including methods used in other areas of national security law, that might cabin the privilege and effectively address the incentives that encourage abuse.
Number of Pages in PDF File: 34
Keywords: state secrets, state secrets privilege, Reynolds, Reynolds v. United States, national security, state secrets act, CIPA
Date posted: July 23, 2009 ; Last revised: November 10, 2009