Distinguished from other legal doctrines
The state secrets privilege is related to, but distinct from, several other legal doctrines: the principle of non- justiciability in certain cases involving state secrets (the so-called "Totten Rule");
certain prohibitions on thepublication of classified information (as in
,the Pentagon Papers case); and the
use of classified information in criminal cases (governed by the Classified Information Procedures Act).
The doctrine was effectively imported fromBritish lawwhich has a similar privilege.
) or derived from the idea of separation of powers (as suggested in
 Supreme Court recognition in United States v. Reynolds
(345 U.S. 1). A military airplane, a B-29 Superfortress bomber, crashed. The widows of three
civilian crew members sought accident reports on the crash but were told that to release such details would threatennational security by revealing the bomber's top-secret mission.
The court held that only thegovernment can claim or waive the privilege, and it “is not to be lightly invoked”, and last there “must be a formalclaim of privilege, lodged by the head of the department which has control over the matter, after actual personalconsideration by that officer.”
The court stressed that the decision to withhold evidence is to be made by thepresiding judge and not the executive.
In 2000, the accident reports were declassified and released, and it was found that the assertion that they containedsecret information was fraudulent. The reports did, however, contain information about the poor condition of theaircraft itself, which would have been very compromising to the Air Force's case. Many commentators have allegedgovernment misuse of secrecy in this landmark case.
Despite this ruling, a case might still be subject to judicial review since the privilege was intended to prevent certain,but not all, information to be precluded.
According to formerWhite House Counsel,John Dean:
While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the"Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison,"between 1953 and 1976, the government invoked the privilege in only four cases."
While Henry Lanman reports in