State Secrets and Executive Accountability

By Wells, Christina E. | Constitutional Commentary, Summer 2010 | Go to article overview

State Secrets and Executive Accountability


Wells, Christina E., Constitutional Commentary


INTRODUCTION

Observers have criticized the state secrets privilege for some time. Although ostensibly a common law privilege designed to prevent disclosure of certain evidence potentially damaging to national security, (1) critics argue that it has morphed into a device by which the federal government maintains nearly total secrecy about its actions. It does so, they claim, because officials have convinced courts to defer to their argument that certain evidence must be suppressed (2) or, more invidiously, because officials have convinced courts to dispose of lawsuits altogether, prior to discovery occurring at all. (3) As a result, critics argue that improper use of the privilege interferes with constitutional and statutory rights, (4) prevents public scrutiny of the government's actions, (5) and harms our system of separated powers because courts abdicate their role as a check on executive action. (6)

Critics of the Bush Administration also argued that it invoked the privilege with greater frequency and to more draconian effect than previous administrations. (7) Specifically, Bush officials sought dismissal of entire lawsuits claiming that the subject matter of the lawsuit was itself a state secret, (8) Substantial debate exists regarding the precise nature of the Bush Administration's use of the privilege. (9) Nevertheless, the Administration's tendency to assert the privilege in high profile lawsuits challenging the constitutionality of terrorism-related programs, such as the renditions of individuals to other countries (10) or the warrantless surveillance of citizens' telephone calls, (11) added to its growing public image as excessively secretive. (12)

Detractors of the Bush Administration thus looked expectantly to the Obama Administration for change. In the beginning, there was reason for hope. During the presidential campaign, Obama criticized the Bush Administration for "ignor[ing] public disclosure rules" and invoking the state secrets privilege "more than any other previous administration to get cases thrown out of civil court." (13) Nevertheless, in early 2009, the Obama Administration disappointed critics of the state secrets privilege by defending or extending the Bush Administration's assertions of the privilege. (14) Although the Obama Administration argued it had carefully reviewed earlier assertions of the privilege, invoking it "only when necessary and in the most appropriate cases," (15) critics were unappeased. Soon thereafter, President Obama promised to reform executive use of the privilege, (16) and in September 2009 the Justice Department announced a new policy regarding the state secrets privilege. (17) That policy established evidentiary and harm requirements prior to assertion of the privilege, a principle of allowing cases to move forward after assertion of the privilege except in exceptional circumstances, and multiple layers of internal review for each assertion. (18) Attorney General Holder stated that the policy was designed to "provide greater accountability and reliability in the invocation of the state secrets privilege" and to "strengthen public confidence [in the] U.S. government." (19)

The Obama policy is surely a response to the privilege's critics, whose arguments raise the specter of unaccountable officials run amok. The Administration's vision of accountability, however, departs from traditional notions of political accountability that dominate legal discourse. (20) Political accountability has generally meant "vesting (21) of ultimate decisional authority in a person who is elected." Accordingly, an official is accountable because she can be voted out of office (or is answerable to an elected official, such as the President). Accountability, however, has many different meanings and the Obama policy embraces a concept quite different from political accountability. Specifically, it adopts what this essay terms "explanatory accountability." That is, by forcing more thoughtful, evaluative invocation of the privilege, the Obama policy requires executive officials to explain and justify their privilege assertions. …

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