Rita Glasionov · February 2009
77 GEO. WASH. L. REV. 458 (2009)
Since the establishment of the modern state secrets privilege in United States v. Reynolds, the scope of a court’s role in determining the validity of a claim of privilege has been unclear. As a consequence, in applying the doctrine, U.S. courts have allowed the executive branch to expand the scope of the privilege beyond its doctrinal underpinnings. Instead of scrutinizing the government’s invocation of the privilege to determine whether there is a “reasonable danger” that disclosure of evidence will pose a risk to national security, as dictated by Reynolds, courts have been largely deferential to executive claims of the state secrets privilege. This expansion of the scope of the privilege allows the executive branch to throw a cloak of secrecy over many controversial government programs and activities that are matters of great public concern. This approach not only forecloses judicial remedies for individuals who allege grave violations of their rights by actions of the United States, but also implicates the need for transparency in a democratically accountable system of government.
To alleviate these concerns for individual rights as well as transparency and democratic accountability, this Note advocates the need to clarify the review process and application of the state secrets privilege. In furtherance of this objective, this Note proposes that Congress should enact a statute that would require in camera judicial review of assertions of privilege, limit the privilege to the duration necessary for secrecy, and toll the statute of limitations on plaintiffs’ claims where such invocation succeeds. This statutory scheme would act to reduce the detriment suffered by individual litigants under the current judicial application of the privilege and enhance the accountability afforded by effective oversight of government actions.
In Part I, this Note describes the historical origins and development of the state secrets privilege in American jurisprudence and its modern formulation by the Supreme Court in United States v. Reynolds. In Part II, this Note discusses contemporary application of the doctrine, including the excessive deference afforded by courts to the executive branch’s assertion that disclosure of information will in fact jeopardize national security, as well as misapplication of the doctrine to dismiss cases on the merits. Part III addresses the implications of this expansion of the privilege on two different levels: (1) the denial of an opportunity for redress to individual litigants, and (2) the detriment to transparency of government actions and policies, and its significance for democratic accountability. This Note also explores the particular consequences of expansion of the privilege in the context of challenges to extraordinary rendition, discussing in particular the cases of El-Masri and Arar. Finally, Part IV provides a proposed statutory solution to the problem and discusses potential criticisms of such an approach and alternative proposals.
