State secrets privilege

The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security. United States v. Reynolds, which involved military secrets, was the first case that saw formal recognition of the privilege.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.'the Reporters Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11.'Correction: In this article, we incorrectly reported that the government invoked the state secrets privilege in 23 cases since 2001. The figure came from the 2005 Secrecy Report Card published by OpenTheGovernment.org. The privilege was actually invoked seven times from 2001 to 2005, according to the corrected 2005 report card, which is not an increase from previous decades.courts have examined the documents' underlying claims of state secrecy fewer than one-third of the times it has been invoked. And ... courts have only actually rejected the assertion of the privilege four times since 1953.What seems clear is that until a year or two ago, the judges rarely even questioned it when the government raised the 'state secrets' claim. It was a neutron bomb – no plaintiffs left standing. But we're now seeing that judges are starting to actually look behind the government's secrecy claims and see what's really there.he incentive on the part of administrators is to use the privilege to avoid embarrassment, handicap political enemies, and to prevent criminal investigation of administrative action.in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was authorized by the President; and determined to be lawful. The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information which might endanger national security. United States v. Reynolds, which involved military secrets, was the first case that saw formal recognition of the privilege. Following a claim of 'state secrets privilege', the court rarely conducts an in 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 which even the judge has not verified the veracity of the assertion. The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case. The purpose of the state secrets privilege is to prevent courts from revealing state secrets in the course of civil litigation (in criminal cases, the Classified 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 state secrets evidence. While the courts may examine such evidence closely, in practice they generally defer to the Executive Branch. Once the court has agreed that evidence is subject to the state secrets privilege, it is excluded from the litigation. Often, as a practical matter, the plaintiff cannot continue the suit without the privileged information, and drops the case. Recently, courts have been more inclined to dismiss cases outright, if the subject matter of the case is a state secret. 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 the publication of classified information (as in New York Times Co. v. United States, 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 from British law which has a similar privilege. It is debatable whether the state secrets privilege is based upon the President's powers as commander-in-chief and leader of foreign policy (as suggested in United States v. Nixon) or derived from the idea of separation of powers (as suggested in United States v. Reynolds). 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 General James Wilkinson to President Thomas Jefferson might contain state secrets and could therefore not be divulged without risk to national security. The privilege was first officially recognized by the Supreme Court of the United States in United States v. Reynolds, 345 U.S. 1 (1953). 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 threaten national security by revealing the bomber's top-secret mission. The court held that only the government can claim or waive the privilege, but that it “is not to be lightly invoked” and that there “must be a formal claim of privilege, lodged by the head of thedepartment 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 the presiding judge and not the executive. In 2000, the accident reports were declassified and released, and it was found that the assertion that they contained secret information was fraudulent. The reports did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government 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 former White House Counsel, John Dean: