State Secrets Privilege
The state secrets privilege is a doctrine that protects evidence from public disclosure if such disclosure would threaten national security. In recent years, the state secrets privilege has been misinterpreted as providing an absolute privilege, effectively acting as a bar to litigation in many cases involving national security programs. As a result, the ability of the courts to serve as an independent check on executive discretion has been undermined.
In an effort to restore checks and balances and limit the use of the state secrets privilege to its proper role, judges should exercise their independent authority to review assertions of the state secrets privilege and Congress should enact legislation to clarify the scope of the privilege and balance the interests of private parties, constitutional liberties, and national security. Unless state secrets claims are subjected to independent judicial scrutiny, the executive branch is at liberty to violate legal and constitutional rights with impunity. Accepting these claims as valid on their face undermines judicial independence, the adversary process, fairness in the courtroom, and our constitutional system of checks and balances.
