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Hastings Constitutional Law Quarterly

Abstract

The state secrets privilege shields evidence from discovery at trial where disclosure of the evidence would threaten national security. It is an important privilege, allowing the government to protect potentially dangerous information from being exposed by way of litigation. But it is also a powerful privilege; when accepted, it often leads to outright dismissal of the case. Given its nuclear effect, expansion of the doctrine beyond its legitimate bounds is constitutionally troubling. And indeed, over the last half century, the privilege has expanded far beyond its original form: courts have grown increasingly likely to use it to dismiss litigation before the merits and increasingly deferential to executive assertions of the privilege.

How has the privilege grown so powerful? What were the critical missteps that led to a judicial approach so permissive that, when a federal judge dared to reject a state secrets assertion in the summer of 2006, it was considered a "rare act of constitutional independence"?

First, two key evolutionary steps - a misread citation and a liberal construction of the phrase "very subject matter" - created a privilege under which courts are too quick to dismiss litigation before the merits. Second, a flawed opinion in the first Supreme Court case recognizing the privilege led to an overly deferential judicial approach to handling claims of the privilege. The modest solution of ex parte in camera review of the allegedly dangerous evidence accords with the Court's jurisprudence on privileges in general, and with the legitimate purposes of the state secrets privilege itself.

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