Academic journal article Case Western Reserve Journal of International Law

Litigating the State Secrets Privilege

Academic journal article Case Western Reserve Journal of International Law

Litigating the State Secrets Privilege

Article excerpt

The state secrets privilege raises important separation of powers and institutional competence questions, especially for courts. Congress can statutorily modify this common-law evidentiary privilege, which should facilitate judicial management of civil litigation with national security implications. Under the Foreign Intelligence Surveillance Act, for example, district courts are expressly authorized to evaluate the legality of government electronic surveillance in special proceedings. This article describes some of the practical litigation problems that arise even when Congress authorizes courts to review claimed national security secrets in the context of a case alleging that the National Security Agency engaged in unlawful warrantless wiretapping. ([dagger])


Much has been written about the constitutional issues raised by the Executive's use of the state secrets privilege to frustrate civil litigation over violations of statutory and constitutional rights. (1) However, the epic nature of the theoretical issues of separation of powers and individual rights in the national security context should not distract us from the practical impact of state secrets privilege assertions on litigation even after the case survives multiple motions to dismiss. How are plaintiffs to litigate cases when courts fear that the litigation itself may touch upon state secrets that may, if disclosed, harm national security?

The Supreme Court seemed to answer this question in the seminal state secrets case United States v. Reynolds, (2) which concerned a tort action for wrongful death arising out of a military airplane crash. Although the Supreme Court found that evidence about electronic devices that were being tested when the plane crashed and killed the plaintiffs' spouses was indeed protected by the state secrets privilege, (3) it nevertheless remanded the case to proceed without the privileged materials. (4) The Court noted that because the surviving crew members were available for examination, "it should be possible for [the plaintiffs] to adduce the essential facts as to causation without resort to material touching upon military secrets." (5)

Reynolds thus expresses confidence that courts and plaintiffs can manage discovery even when state secrets are involved. Courts nevertheless continue to be perplexed by the actual management of state secrets cases. The Executive's demand that courts "look down the road"--i.e., to evaluate a case far in advance of the normal procedures for developing an evidentiary record--runs contrary to the iterative fact-development process of normal litigation and forces courts to play litigation gatekeeper in difficult circumstances. Even when courts find a reasonable path to navigate, they face practical difficulties in making the normal adversary process work in the face of Executive refusal to provide litigants or their counsel with access to information needed to litigate the case.

This article tells a cautionary tale of how the Executive refused to accept judicial authority to manage litigation and to grant some level of litigant access in the interests of due process and the federal courts' Article III power to decide cases. Courts and litigants face significant hurdles in actual litigation even when Congress has preempted the state secrets privilege so as to avoid threshold dismissal.


The state secrets privilege prevents discovery of secret evidence when disclosure would threaten national security. Reynolds set forth the basic framework of the privilege: (1) it belongs to the government; (2) it must be properly invoked by means of a "formal claim of privilege, lodged by the head of the department which has control over the matter" after "actual personal consideration;" (6) (3) the court must then "determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect;" (7) (4) the precise nature, extent, and manner of this inquiry depends in part on the extent of a party's need for the information sought tested against the strength of the government's claim of privilege; (8) and (5) in camera review can be appropriate, but not in all cases. …

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