Does Justice "Need to Know"? Judging Classified State Secrets in the Face of Executive Obstruction

By Akremi, Faaris | Stanford Law Review, March 2018 | Go to article overview

Does Justice "Need to Know"? Judging Classified State Secrets in the Face of Executive Obstruction


Akremi, Faaris, Stanford Law Review


Table of Contents  Introduction I.   Sketching the Contours of the State Secrets Privilege      A. The Origins of the State Secrets Privilege         1. Early years         2. Canonization         3. Modern trends      B. The Nature of the State Secrets Privilege II.  Judicial Tools for Resolving State Secrets Disputes      A. Relatively Established Tools: In Camera and Ex Parte Review      B. Judicial Innovations in State Secrets Adjudications         1. Special masters         2. Expert witnesses         3. Security-cleared counsel III. Security Clearance as a Veto Against Effective Judicial Review      of State Secrets Privilege Invocations      A. What's in a Clearance?      B. Can Courts Review or Compel Determinations Related to         Security Clearances?         1. Trends in judicial review of executive orders         2. Judicial action and security clearance decisions         3. Judicial action and "need-to-know" determinations         4. Balancing state secrets review with appropriate respect for            the classification and security clearance system Conclusion 

Introduction

Some information is too sensitive to release to the public. Details of military strategies, sensitive technologies, and other state secrets could, in the wrong hands, endanger national security. The institutions of our government have recognized as much in creating the state secrets privilege. Described as "the most basic of government privileges," it serves to "protect[] survival of the state, from which all other institutions derive." (1) Though the precise provenance of the privilege is unclear, its first precedents date from early British law and the founding of the United States. (2) In practice, the privilege allows the federal government to unconditionally withhold sensitive materials from evidentiary records in court cases. (3) A majority of commentators agree that in its most basic form, such a privilege is necessary and appropriate. (4)

But the privilege is prone to misuse and abuse. (5) One can readily imagine circumstances in which the executive branch would prefer not to release embarrassing or self-incriminating evidence relevant to a challenger's case, (6) irrespective of whether that evidence actually contains state secrets. The Supreme Court recognized this problem when it admonished courts to carefully review state secrets privilege claims to "determine whether the circumstances are appropriate for the claim" and warned that "abandonment of judicial control would lead to intolerable abuses." (7)

Many believe that since 9/11, the privilege has been invoked in a manner leading to precisely such abuses. (8) Some point to the drastic increase in the frequency of the privilege's invocation as a sign of trouble. (9) Others focus on the myriad cases involving alleged human and civil rights violations in which the government claimed relevant evidence to be categorically privileged, resulting in dismissal. (10) In any event, some courts appear to have grown skeptical and, in a bid to rein in overuse of the privilege, have begun to innovate. Through the use of special masters, expert witnesses, and longstanding procedural devices such as in camera review, courts across the country have begun to more thoroughly scrutinize state secrets privilege claims. (11)

The executive branch, for its part, has sought to limit judicial review through the classification and security clearance system. (12) The clearance system is a product of longstanding executive orders that, although issued by politically diverse administrations, vest power exclusively in the executive branch. (13) Because virtually all purported state secrets are also classified, the executive has sought to use the clearance process as a bulwark against judicial attempts to consult with special masters, expert witnesses, and litigants' counsel in judging privilege disputes. (14) The executive argues that it holds ultimate authority over initial security clearance decisions as well as subsequent "need-to-know" determinations, which are made for each attempt to access classified information. …

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