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The State Secrets Privilege in the Post-9/11 Era

55 Pages Posted: 2 Apr 2010  

Steven D. Schwinn

John Marshall Law School (Chicago)

Date Written: March 31, 2010

Abstract

This article examines the Government’s position on the state secrets privilege in the post-9/11 cases. It argues that the Government’s new position, first under President Bush and now under President Obama, marks an important and disturbing change in how it considers and treats the privilege. In these cases, the Government has sought to dramatically expand the privilege by arguing that the state secrets privilege has roots in constitutional separation-of-powers principles, and not merely in common law evidentiary principles. As a result of this claim, the Government has moved to minimize the roles of the courts in policing the privilege, it has negated private litigants’ interests in their cases against the Government and its partners, and it has argued that courts must completely dismiss those cases in which the Government alone decrees that the very subject matter is a state secret. This new view of the state secrets privilege has gained some traction in the federal courts, even though it lacks support in the history and the precedent of the privilege. Efforts to reform the privilege must take account of the Government’s sweeping new position.

Keywords: State Secrets Privilege, separation of powers

Suggested Citation

Schwinn, Steven D., The State Secrets Privilege in the Post-9/11 Era (March 31, 2010). Pace Law Review, Vol. 30, p. 778, 2010. Available at SSRN: https://ssrn.com/abstract=1582707

Steven D. Schwinn (Contact Author)

John Marshall Law School (Chicago) ( email )

315 South Plymouth Court
Chicago, IL 60604
United States
312.386.2865 (Phone)

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