State Secrets Privilege

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Louis Fisher, "Judges Need to Look" (PDF, 146KB), Legal Times, November 24, 2008, pp. 34-35. Executive Order 12958 establishes administration policy for classifying national security information. It directs agencies not to use classification to "conceal violations of law." When private citizens seek government documents under the Freedom of Information Act (FOIA), at times to uncover agency violations, Congress specifically authorized federal judges to examine highly classified documents in their chambers. In a recent case, District Judge Royce Lamberth was asked by private litigants to look at classified transcripts from Guantanamo to determine if there had been torture or abusive interrogations. Instead, he chose to examine what the Central Intelligence Agency said about the transcripts in an affidavit.

Louis Fisher, "Secret Documents: Why Classify Legal Memos?" (PDF, 126KB), National Law Journal, July 14, 2008. On March 31, 2008, the Bush administration declassified a legal memo issued five years earlier by John Yoo of the Justice Department. The memo is entitled "Military Interrogation of Alien Unlawful Combatants Held Outside the United States." Although declassified, there is no explanation of when it was classified, why it was classified, and who classified it, all of which is required by Executive Order 12958. The memo consists purely of legal analysis without indicating any matter clearly sensitive and deserving of some level of classification. How can the rule of law be protected when policy is governed by secret legal memos?

Statement by Louis Fisher, appearing before the Senate Committee on the Judiciary, "Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability" (PDF, 96KB), February 13, 2008. The state secrets privilege is now a central issue and Congress is the appropriate branch of government to supply much needed procedures and governing principles. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. The executive branch is not entitled to "utmost deference" or even "deference." In the past, federal courts have been misled by executive claims about national security, including in the seminal case of United States v. Reynolds (1953).

Statement by Louis Fisher, presented to the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Committee on the Judiciary, "Reform of the State Secrets Privilege" (PDF, 68KB), January 29, 2008. Following the terrorist attacks of 9/11, assertions of the state secrets privilege pose a greater threat to constitutional government and individual liberties in such cases as NSA surveillance and extraordinary rendition. Even if it appears that the administration has acted illegally, the executive branch advises federal judges that a case cannot allow access to documents without jeopardizing national security. Self-interested executive claims may override the independence of the federal judiciary, the corrective mechanism of checks and balances, and the right of private litigants to have their day in court. Congress needs to enact legislation to strengthen the adversary process that we use to pursue truth in the courtroom.

Louis Fisher, "The State Secrets Privilege: Relying on Reynolds" (PDF, 151KB), 122 Pol. Sci. Q. 385 (2007). The George W. Bush administration has invoked the state secrets privilege as an absolute bar to litigation whenever the administration determines that the disclosure of agency documents would harm national security. The cases involve such areas of law as NSA surveillance and extraordinary rendition. This article analyzes the Supreme Court case relied on primarily by the administration, United States v. Reynolds (1953), which for the first time recognized the state secrets privilege. The Court's decision did great damage to the integrity of the judiciary, the rights of private litigants, and the constitutional system of checks and balances.

Louis Fisher, "People v. State: Security Secrets Must be Weighed Against American's Broader Interests" (PDF, 98KB), Legal Times, October 1, 2007, pp. 66-67. In recent cases involving state secrets, federal judges typically put the plaintiff's interest on one side of the scale and the government's interest (or "national interest") on the other. Under this test, the individual can be guaranteed to lose every time. Judicial analysis following this standard protects neither the plaintiff nor the nation. There is no national interest in picking up the wrong person (Khalid el-Masri, for example) and keeping him in prison for five months. El-Masri was not merely presenting his own interests. He represented every individual, U.S. citizen or alien, who wants to avoid a similar fate. Judicial deference to executive claims does not protect the national interest or the system of checks and balances.

For book-length treatment of the state secrets case and the Reynolds decision by the Supreme Court, see Louis Fisher, In The Name of National Security: Unchecked Presidential Power and the Reynolds Case (Lawrence: University Press of Kansas, 2006).

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Last Updated: 08/03/2012