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Thursday, August 11, 2011

The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation

Todd Garvey
Legislative Attorney

Edward C. Liu
Legislative Attorney

The state secrets privilege is a judicially created evidentiary privilege that allows the federal government to resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. Although the common law privilege has a long history, the Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. Second, a court must independently 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. If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court.

A valid invocation of the privilege does not necessarily require dismissal of the claim. In Reynolds, for instance, the Supreme Court did not dismiss the plaintiffs’ claims, but rather remanded the case to determine whether the claims could proceed absent the privileged evidence. Yet, significant controversy has arisen with respect to the question of how a case should proceed in light of a successful claim of privilege. Courts have varied greatly in their willingness to either grant government motions to dismiss a claim in its entirety or allow a case to proceed “with no consequences save those resulting from the loss of evidence.” Some courts have taken a more restrained view of the consequences of a valid privilege, holding that the privilege protects only specific pieces of privileged evidence. In contrast, other courts have taken a more expansive view, arguing that the privilege, with its constitutional underpinnings, often requires deference to executive branch assertions and ultimate dismissal. Dismissal of a claim under the privilege often leaves a party with no other available remedy.

The state secrets privilege arises in a wide array of cases, generally where the government is a defendant or where the government has intervened in a case between private parties to prevent the disclosure of state secrets. Recently, the privilege has been characterized by a number of highprofile assertions—including invocation of the privilege to defend against claims arising from the government’s “extraordinary rendition” practices, challenges to the terrorist surveillance program, and claims against various national security agencies for unlawful employment practices. The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors. Most recently, in May of 2011, the Supreme Court held that the valid invocation of the state secrets privilege could render a defense contracting dispute nonjusticiable, leaving both the defense contractor and the Pentagon without any judicial remedies to enforce the contract.

This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice.

Date of Report: July 13, 2011
Number of Pages: 22
Order Number: R41741
Price: $29.95

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