State
secrets doctrine catapulted to prominence post-2001, as the executive
responded to lawsuits alleging a range of constitutional
and human rights violations by refusing to disclose information during
discovery and, in some cases, requesting dismissal of suits altogether
on national security grounds. More than 120 law review
articles followed, and media outlets became outspoken in
their criticism of the privilege. In both the Senate
and the House, new bills sought to codify what had previously been a
common law doctrine. And in September
2009, the Attorney General introduced new procedures for review and
created a State Secrets Review Committee.
Despite
the sudden explosion in scholarship and other attention paid to state
secrets, very little is known about how the privilege actually works.
The research serving as a basis for much of the discussion focuses narrowly
on published judicial opinions in which the U.S. government has invoked
the privilege and the courts have ruled on it. Myriad concerns
follow.
First
and foremost, such analyses reveal very little about how the executive
branch actually uses the privilege—who invokes it, under what circumstances
it is invoked, how frequently it has been threatened, and to what end.
Put simply, there is a logical disconnect between looking at how courts
rule in their final, published opinions on state secrets and drawing
conclusions about the executive branch’s practices.
Second,
the narrow focus on the outcome of published cases sheds little light
on how the doctrine operates—how it influences the course of litigation,
the range of cases in which it is used, or how parties respond, such
as by dropping suits early in the process in the face of the threatened
or actual invocation of the privilege.
Third,
current scholarship provides a truncated view of how the courts deal
with assertion of the privilege. Omitted are the many cases in
which the court sidesteps the question altogether or dispenses of the
state secrets questions at an early stage in the litigation.
Absent, too, are unreported and unpublished opinions (which constitute
around eighty percent of the appellate courts’ caseload),
as well as sealed memoranda and opinions. The resultant lack of
baseline analysis makes it difficult to conclude how the judiciary treats
the privilege, as well as what variation occurs between the circuits.