Is the State Secrets Privilege in the Constitution? the Basis of the State Secrets Privilege in Inherent Executive Powers & Why Court-Implemented Safeguards Are Constitutional and Prudent

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TABLE OF CONTENTS

  I. INTRODUCTION
 II. ORIGINS, CONTEXT, AND CONTROVERSY: BACKGROUND TO THE
     STATE SECRETS PRIVILEGE
     A. The Origins of the Privilege
     B. The State Secrets Privilege in Context of Other Government
        Privileges
        1. The Bar to Litigation of Espionage Contracts
        2. The Executive Privilege
     C. The Circuit Split on the Constitutional Basis for the State
        Secrets Privilege
III. THE STATE SECRETS PRIVILEGE IS BASED IN EVIDENTIARY LAW AS
     WELL AS THE CONSTITUTION
     A. Implications for the Basis of the State Secrets Privilege
     B. The Clear Constitutional Basis for the State Secrets
        Privilege
 IV. THE STATE SECRETS PRIVILEGE AS AN INHERENT EXECUTIVE
     CONSTITUTIONAL POWER
     A. The Executive Has Well-Established Authority to Protect
        State Secrets
     B. Congressional Foreign Affairs Powers Do Not Reach State
        Secrets
     C. Judicial Review of State Secrets is Limited to its Fields of
        Expertise
  V. A CONSTITUTIONAL SAFEGUARD: REQUIRED JUDICIAL REVIEW OF
     STATE SECRETS INVOCATION
     A. Courts Should Standardize Review of Invocations of the
        State Secrets Privilege
     B. The Judicial Branch is Best Suited to Impose a Safeguard on
        the Privilege
VI. CONCLUSION

I. INTRODUCTION

On April 7, 2010, the Washington Post reported that a U.S. citizen living in Yemen had been placed on a target list of terrorists that the U.S. military and the CIA are authorized to kill. (1) This individual, Anwar al-Aulaqi, was the reported leader of al-Qaeda in the Arabian Peninsula and was tied to a number of terrorist acts against the United States, including the Christmas Day terrorist attempt, Major Nidal Hasan's shooting at Fort Hood, and other terrorist acts. (2) On September 30, 2011, al-Aulaqi was driving in northern Yemen with another American citizen, Samir Khan, when armed drones fired Hellfire missiles at them, killing them both. (3)

After the Post's initial report in 2010 and before al-Aulaqui died, his father filed a complaint against the U.S. government, challenging the unilateral decision to authorize the targeted killing as a violation of due process and other constitutional rights and seeking an injunction that would prohibit the government from using deadly force against his son. (4) In its reply, the government asserted the state secrets privilege and argued that the necessity of protecting state secrets information foreclosed litigation of al-Aulaqi's claims. (5) Without reaching the state secrets privilege, the District Court for the District of Columbia, on December 7, 2010, dismissed the case on grounds of standing and based on the political question doctrine. (6)

This case is the most recent invocation of a long-established government privilege which frequently results in barring all further litigation of the issue. (7) From 1954 through 2008, the state secrets privilege was adjudicated in about a hundred cases. (8) In most, but not all, the assertion of the privilege was upheld. (9) The state secrets privilege has become particularly important since September 11, 2001, because in a number of cases involving issues such as torture, (10) extraordinary rendition, (11) and domestic warrantless surveillance, (12) the Bush Administration argued that the privilege is based in inherent executive power and not subject to judicial review. (13) The Obama Administration has continued this assertion, arguing in Al-Aulaqi, for example, that the protection of state secrets from disclosure in litigation is within "[t]he ability of the Executive." (14)

Given such harsh results of invocation, one might expect a clear constitutional basis for the privilege. Instead, the question has only murky and divided answers. In the founding state secrets case, the Supreme Court declined to address the issue of whether the privilege was based in constitutional powers, and if so, which branch of the government had this authority to prevent disclosure of national security information in civil litigation. …