“Nothing Is So Oppressive as a Secret”: Recommendations for Reforming the State Secrets Privilege
Volume 80, No. 2, Summer 2007
By Emily Simpson

“The very essence of civil liberty certainly consists in the right of every individual to claim protection of the laws, whenever he receives an injury.”

Imagine being abducted, imprisoned, and tortured for months by captors who, at best, suspected that you were innocent? and, at worst, knew it. Or imagine losing a spouse in an accident you strongly believed was caused by someone else’s negligence. Then, imagine suing, reaching the discovery phase, and having the defendant refuse to produce key evidence. To do so, the defendant claims, would compromise national security. The defendant is the government, or a friend of the government; the court takes the defendant at its word, and your case is dismissed. That is precisely what happened to Khaled El-Masri, three widows whose civilian husbands died in an Air Force crash, and countless other plaintiffs with similar stories over the past fifty-plus years.

The mechanism that closes courtroom doors in the faces of such plaintiffs is the state secrets privilege, an evidentiary privilege that belongs solely to the executive branch and is used to prevent disclosure of any evidence that the executive deems detrimental to national security. Use, and abuse, of this privilege has increased dramatically in recent decades, leading many scholars to advocate for its demise or reform. Adding fuel to this fire is the recent discovery that the seminal state secrets privilege case, United States v. Reynolds, was decided based on faulty information (some would say outright lies) from the executive branch. The daughter of one of the Reynolds decedents found that the documents her mother needed to move forward with her suit against the Air Force did not contain any information about secret testing, as the Air Force had claimed. Rather, they contained damning evidence pointing to the Air Force’s negligence as the cause of the crash that killed her father. Thus, the very foundation on which the state secrets privilege was built has proven flimsy, and the time has come for change.

This Comment seeks to add to the state secrets privilege conversation by analyzing the reasons why courts should reevaluate the privilege, discussing the pros and cons of several previously offered proposals for change, and suggesting a route to reform. Part II of this Comment offers an overview of the state secrets privilege, describing how it came into being, how it works, and how it has been applied since its inception. It also introduces several commentators’ past proposals for change. Part III.A discusses El-Masri v. Tenet as a recent example of the power of the privilege and offers the case as a specific example of why the privilege is ripe for reform. Part III.B offers more general reasons for reevaluating the privilege, focusing on the importance of confidence in the rule of law and the fact that judicial restraint is not mirrored in the executive branch. Part III.C evaluates and ultimately rejects proposals for implementing special procedural techniques in state secrets cases and for reallocating burdens of proof. Part III.D discusses the appropriate balancing test for state secrets privilege cases and advocates for implementation of a comparative standard when applying the privilege. Part IV concludes the Comment.

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