State secrets privilege

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In U.S. law, the state secrets principle is a legal doctrine that allows evidence from being made public during trials, or, in some cases, an entire case to be dismissed, because information critical to national security would be revealed. Some interpretations regard it as absolute, and derived from the President's Article II authority as Commander-in-Chief, claiming that the Constitution did not intend the courts to be a check and balance on the unique Presidential authority to wage war.[1] Other interpretations see no exemptions from a basic Constitutional concept of checks and balances. The American Civil Liberties Union describes its proper use as allowing the "government to block the release of any information in a lawsuit that, if disclosed, would cause harm to national security."[2]

There have been various case-by-case mechanisms to find intermediate positions, such as giving defense attorneys, but not necessarily the defendant, access to some of the classified information in the prosecution case. Until recent years, however, the application principally was to suppress individual pieces of evidence, rather than to prevent the conduct of an entire trial and resolution of the case.

Other countries have similar positions. In some cases, the issue is bilateral involving one country requiring another to protect shared information. This is a long-understood general principle in intelligence: one country will not share intelligence with a second, if the second country's procedure causes disclosure of its sensitive sources. This arose with regard to the case of Binyam Ahmed Mohammad, in a British court ruled that evidence (i.e., in the U.K. courts) would be withheld because the U.S. had threatened to stop providing intelligence on terrorism to the U.K., because "the public of the United Kingdom would be put at risk." David Davis, shadow Home Secretary in the opposition, called for an explanation of the action by Lord Justice Thomas and Mr Justice Lloyd. It had been reported that Britain was part of the torture of Binyam Ahmed Mohammed. [3] Thomas and Douglas, however, were reported as unhappy with the decision, which they made as a result of a warning by the Foreign Secretary, David Miliband.[4]


While it was invoked occasionally in the 19th century, the first major modern case was U.S. v. Reynolds.[5] "When the accident report was finally declassified in 2004, it contained no details whatsoever about secret equipment. The government’s true motivation in asserting the state secrets privilege was to cover up its own negligence."[2] Between Reynolds and the Jimmy Carter election in 1976, the U.S. government was reported to have invoked it four times. Between 1977 and 2001, it was invoked 51 times. election of Jimmy Carter, in 1976, there were four reported cases in which the government invoked the privilege. Between 1977 and 2001, there were a total of fifty-one reported cases in which courts ruled on invocation of the privilege. "...Because reported cases only represent a fraction of the total cases in which the privilege is invoked or implicated, it is unclear precisely how dramatically the use of the privilege has grown. But the increase in reported cases is indicative of greater willingness to assert the privilege than in the past."[6]

It has been used frequently in the George W. Bush Administration, often to block trials, as in el-Masri v. Tenet, as well as suppress disclosure. Certainly, there were increases in secret operations since 2001, with sources and methods that needed preservation.

While it was a campaign issue in the 2008 election, the Obama Administration has continued some of the George W. Bush Administration positions, although it has said it was reviewing them.

Recent political actions

In early 2008, Democratic senators Edward Kennedy (D-MA) and Patrick Leahy (D-VT), with Republican Arlen Specter (R-PA), introduced the State Secrets Protection Act. It had numerous cosponsors including then-senator Joe Biden (D-DE), now Vice President of the United States. Among its provisions, accepted by all Democrats on the Senate Judiciary Committee and reflecting a pre-2009 Democratic consensus:[7]

  • "the state secrets privilege shall not constitute grounds for dismissal of a case or claim" (Sec. 4053(b)).
  • could be invoked only "as a ground for withholding information or evidence in discovery or for preventing the introduction of evidence at trial" (Sec. 4054(a))
  • must submit each allegedly privileged piece of evidence to the court for the court to determine whether each item is legitimately subject to the privilege (Sec. 4054(d-e))
  • If the court determines that a given piece evidence should be suppressed, it must attempt to find an evidentiary substitute (e.g., a summary of the evidence, a partially redacted copy, compelled admissions by the Government of certain allegations) (Sec. 4055)
  • The court can dismiss the case only if it finds, after discovery, that the plaintiff cannot present its case without the evidence or a substitute (Sec. 4055)

During the 2008 Presidential campaign, the Barack Obama campaign made specific reference to the issue on its website,

The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court.[8]

In February 2009, however, the Obama Administration's position, according to ABC News, was that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al. v. Jeppesen Dataplan, Inc.[9] ABC also reported that U.S. Department of Justice spokesman Matt Miller said of the case, "It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases, consistent with the United States Supreme Court's decision in Reynolds that the privilege not 'be lightly invoked.'" Miller said that all privilege cases were under review, at the order of the U.S. Attorney General, Eric Holder.


  1. Barbara Comstock, Director of Public Affairs, U.S. Department of Justice (October 18, 2002), Statement regarding Today's Filing in Sibel Edmonds v. Department of Justice
  2. 2.0 2.1 Background on the State Secrets Privilege, American Civil Liberties Union, 1/31/2007
  3. Andy Davies (February 4, 2009), "US government threatens to withdraw intelligence", Channel 4 (UK)
  4. Richard Norton-Taylor (February 5, 2009), "Evidence of torture 'buried by ministers': Judges condemn secrecy over files detailing treatment of suspect by CIA", Guardian
  5. 345 U.S. 1 (1953)
  6. William G. Weaver and Robert M. Pallitto, State Secrets and Executive Power
  7. Glenn Greenwald (February 10, 2009), "The 180-degree reversal of Obama's State Secrets position",
  8. Ethics, Barack Obama and Joe Biden: the Change we Need
  9. Jake Tapper and Ariane de Vogue (February 09, 2009), Obama Administration Maintains Bush Position on 'Extraordinary Rendition' Lawsuit