State Secrets Privilege

The Brooklyn Law Review will publish in its forthcoming edition an article by Western New England College School of Law Assistant Professor of Law Sudha Setty entitled Litigating Secrets: Comparative Perspectives on the State Secrets Privilege. The article is very timely given the litigation now pending in the Northern District of California in the cases of Al-Haramain v. Bush and Jewel v. National Security Agency. In both cases, the Obama administration has adopted the Bush administration’s position that courts cannot judge the legality of the National Security Agency’s (NSA’s) warrantless wiretapping program. The government filed a motion to dismiss Jewel v. NSA earlier this month. In the Al-Haramain case, a civil suit brought by an Islamic charity allegedly subjected to illegal NSA surveillance, Judge Vaughn Walker has just issued a protective order requiring the government to come up with a way to safeguard the classified information it plans to present in the NSA’s defense by May 8. Walker crafted the order narrowly to prevent the government from appealing it immediately to the Ninth Circuit. Whether the administration presents a plan for safeguarding classified information or re-asserts the state secrets privilege remains to be seen.

The abstract of the article on SSRN reads:

The Article considers the history and use of the state secrets privilege in the United States and the ongoing congressional efforts to reform the use of the privilege. Although numerous articles have addressed the application of the state secrets privilege in the United States, this Article breaks new ground by examining the history and use of the privilege in other nations which confront serious national security threats. This Article considers the modern application the privilege in Scotland, England, Israel and India – an analysis which contextualizes both the current use of the U.S. privilege and the efforts at legislative reform. Such comparative analysis is necessary to fully understand the transnational implications of the U.S. application of the state secrets privilege, which have recently come to light in litigation involving both the United States and England.

This Article concludes that domestic reform efforts continue to be necessary to achieve an appropriate application of the privilege which balances national security with the need to preserve the rule of law, individual rights, liberty interests and government accountability. The Article further suggests that reforms should explicitly account for alleged human rights abuses by the government in determining whether a claim of privilege should be upheld.

For additional reading from the BLS Library collection on the subject of state secrets, see SARA, the online catalog for Presidential Secrecy and the Law by Robert M. Pallitto and William G. Weaver (Call # JK468.S4 P35 2007) and Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments (Call # KF4570 R66 2007) a Congressional Research Service Report by Morton Rosenberg.