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When It is No Secret It is No Secret Why Invoking the State Secrets Privilege

When It is No Secret It is No Secret Why Invoking the State Secrets Privilege

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Published by Frank Gallagher
When coherency comes around it will be a merry-go-round our privilege
When coherency comes around it will be a merry-go-round our privilege

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Published by: Frank Gallagher on May 02, 2013
Copyright:Attribution Non-commercial


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The state secrets privilege is an evidentiary rulecreated by United States legal precedent.Application of the privilege results in exclusion of evidence from alegal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security.
 which involved military secrets, was the first case that saw formal recognition of theprivilege.Following a claim of "state secrets privilege", the court rarely conducts anin camera examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in whicheven the judge has not verified the veracity of the assertion.
 The privileged material is completely removed fromthe litigation, and the court must determine how the unavailability of the privileged information affects the case.
 [ edit ] Function
The purpose of the state secrets privilege is to prevent courts from revealing state secrets in the course of civillitigation (in criminal cases, theClassified Information Procedures Act serves the same purpose). The government may intervene in any civil suit, including when it is not a party to the litigation, to ask the court to exclude statesecrets evidence. While the courts may examine such evidence closely, in practice they generally defer to theExecutive Branch.Once the court has agreed that evidence is subject to the state secrets privilege, it is excludedfrom the litigation. Often, as a practical matter, the plaintiff cannot continue the suit without the privilegedinformation, and drops the case. Recently, courts have been more inclined to dismiss cases outright, if the subjectmatter of the case is a state secret.
[edit] 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).
 [ edit ] History
[edit] Origins
The doctrine was effectively imported fromBritish lawwhich has a similar privilege.
 It is debatable whether thestate secrets privilege is based upon the President's powers as commander-in-chief  and leader of  foreign affairs (as suggested in
) or derived from the idea of separation of powers (as suggested in
 It seems that the US privilege "has its initial roots in Aaron Burr's trial for treason." In this case, it was alleged that a letter from GeneralJames Wilkinson to PresidentThomas Jeffersonmight contain state secrets and could therefore not be divulged without risk to national security.
[edit] Supreme Court recognition in United States v. Reynolds
The privilege was first officially recognized by theSupreme Court of the United States in the 1953 decision
(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.
[edit] Recent use
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 

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