• 30 October 2009

Reforming the State Secrets Privilege

Beth George

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This Editorial summarizes a forthcoming Note that investigates the problems associated with the state secrets privilege, describes the inherent problems in currently proposed reforms, and suggests a new direction for effective reform of the doctrine.

The state secrets privilege is a common-law privilege that allows the federal government to withhold evidence in civil cases if revelation of such evidence would threaten national security.  Many scholars and advocates assert that this privilege is often abused by government officials who use it to cover up misconduct or prevent embarrassment.1 Furthermore, its extensive use by the Bush administration and its continuing use by the Obama administration in high-profile cases has brought the issue under scrutiny in the mainstream press.  The question of how to reform the privilege is now a prominent public debate.


I.
History of the State Secrets Privilege

The Supreme Court first recognized the state secrets privilege in United States v. Reynolds,2 a case in which the government claimed that revelation of an accident report regarding a military plane crash would threaten national security.  In Reynolds, the Supreme Court allowed the government to withhold the report without permitting a judge to review its content in camera.  Decades later, when the document was released, its contents revealed that there had been no threat to national security and that the government had withheld the document to prevent embarrassment.  In recent years, the state secrets privilege has been used to quash civil cases regarding employment discrimination, retaliation against whistleblowers, and torture.


II.
Recent Calls for Reform

Calls for reform of the state secrets privilege have largely focused on what went wrong in Reynolds:  Had the judge simply been allowed to review the document, the argument goes, the false claim of state secrets would have been prevented.  Drawing from this logic and from many scholarly articles advocating reform, Congress is considering a bill that would require substantive judicial review of the privilege.3 Under this bill, if the government invokes the privilege, a judge would be required to review each document and determine for herself whether its revelation would harm national security.

The Obama administration, on the other hand, recently announced that it would implement new administrative mechanisms within the executive branch to reform the privilege instead of relying on judicial review.4 This announcement has been met with criticism from congressional leaders and civil liberties advocates who argue that any meaningful reform of the privilege would require external oversight by the judiciary.5


III.
Problems with Recently Proposed Solutions

My upcoming Note6 argues that judicial review alone is unlikely to reform the state secrets privilege effectively because it cannot address the underlying incentives that encourage abuse by the executive branch.  Prior to the new rules issued by the Obama administration, invoking the privilege was extremely easy and had few consequences for the executive branch.  While judicial scrutiny might create some disincentive for invoking the privilege frivolously, it is unlikely to completely deter abuse for two related reasons.  First, a risk-averse judiciary is unlikely to challenge the government’s assertions of grave harm to national security except in the most blatant cases of abuse.  Second, most abuses of the privilege are unlikely to be as blatant as in the Reynolds case.  Instead, they would likely involve close calls regarding the degree to which releasing information might harm national security or the extent to which certain information—for example, how many (or how few) Arabic-speaking employees work at the FBI—might be a matter of national security.


IV.
A Better Reform of the State Secrets Privilege

My Note builds the case that administrative law-based reforms, like the ones proposed by the Obama administration, will deter executive branch abuse more effectively than judicial review alone by discouraging invocation of the privilege in the first place.  I argue that administrative law mechanisms have been used effectively in other areas of national security law to deter abuse.  By making invocation of the privilege more administratively burdensome and by putting the professional credibility of officials who will not benefit personally from the invocation of the privilege on the line, the reforms proposed in my Note would more effectively discourage over-reaching in the state secrets privilege context.

This argument does not compel the conclusion that the Obama administration’s proposal is sufficiently comprehensive to deter all abuse of the state secrets privilege.  Legislation mandating (and expanding upon) the new administrative requirements still may be necessary in order to prevent the next administration from rescinding such requirements if they become inconvenient.  My Note simply makes the case that advocates who seek to reform the privilege should build upon internal administrative law mechanisms designed to balance incentives rather than solely rely on the judiciary to police the privilege.dingbat

Acknowledgments:

Copyright © 2009 New York University Law Review.

Beth George is a J.D. Candidate at New York University School of Law.

This Editorial introduces and is an abbreviated version of her full-length Student Note: Beth George, Note, An Administrative Law Approach to Reforming the State Secrets Privilege, 84 N.Y.U. L. REV. 1691 (2009).

  1. See, e.g., Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope Through Government Misuse, 11 LEWIS & CLARK L. REV. 99, 105-10 (2007). See generally, D.A. Jeremy Telman, Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege, 80 TEMP. L. REV. 499 (2007); William G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 POL. SCI. Q. 85 (2005).
  2. 345 U.S. 1 (1953).
  3. State Secrets Protection Act, S. 417, 111th Cong. (2009); State Secret Protection Act of 2009, H.R. 984, 111th Cong. (2009).
  4. See generally Memorandum from Eric Holder, Attorney Gen., to Heads of Executive Dep’ts and Agencies and Heads of Dep’t Components (Sept. 23, 2009), available at http://www.usdoj.gov/opa/documents/state-secret-privilieges.pdf.
  5. See, e.g., Press Release, ACLU, Proposed State Secrets Guidelines Don’t Relieve Need for Real Reform (Sept. 23, 2009), available at http://www.aclu.org/safefree/general/41124prs20090923.html?s_src=RSS; see also Posting of Michael Scherer to Swampland, http://swampland.blogs.time.com/2009/09/23/barack-obamas-new-state-secrets-policy-the-question-of-court-review (Sept. 23, 2009, 15:50 EST).
  6. Beth George, Note, An Administrative Law Approach to Reforming the State Secrets Privilege, 84 N.Y.U. L. REV. (forthcoming Dec. 2009).

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