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

American University National Security Law Brief, Forthcoming

Valparaiso University Legal Studies Research Paper No. 12-18

13 Pages Posted: 19 Dec 2012 Last revised: 6 Jan 2013

See all articles by D. A. Jeremy Telman

D. A. Jeremy Telman

Oklahoma City University School of Law

Date Written: December 19, 2012

Abstract

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.

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

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: https://ssrn.com/abstract=2191656

D.A. Jeremy Telman (Contact Author)

Oklahoma City University School of Law ( email )

800 N Harvey
Oklahoma City, OK 73102
United States
4052085939 (Phone)

HOME PAGE: http://https://law.okcu.edu/people/telman/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
116
Abstract Views
1,207
rank
343,693
PlumX Metrics