Wednesday, October 29, 2008

The State Secrets Privilege

Professor Amanda Frost (American U. WCL) and Justin Florence (O'Melveny & Myers and G-town Center on National Security and the Law) recently released an American Constitution Society Issue Brief titled Reforming the State Secrets Privilege.  The Brief traces the history of the State Secrets Privilege, argues that the Bush administration has asserted the privilege to an unprecedented degree, and offers advice on the privilege to a new administration.  (I previously linked to this Brief, among others, in a post on ACS recommendations for a new administration.)

Frost and Florence's Brief provides an excellent review of the privilege, tracing it from Reynolds, to Totten and Tenet v. Doe, and through the more recent cases (three mentioned below).  The Brief is all the better because it examines the privilege--and recommends changes--with reference to the bureaucratic and political landscapes within which the privilege operates.  The Brief and related materials discussed and linked below well supplement a standard casebook presentation of the privilege.

Frost and Florence argue that the Bush administration's practice "represents a marked change not only in the number of assertions of the privilege, but also in the degree to which it is aimed at restricting access to the courts."  They give two examples: assertion of the privilege in cases challenging extraordinary rendition; and assertion in cases challenging the NSA's warrantless wiretapping.

As to extraordinary rendition, the Second Circuit case Arar v. Ashcroft, the case of the wrongfully detained Canadian, provides good fodder for discussions of the privilege in litigation and the administration's arguments in support of the privilege.  The Center for Constitutional Rights collects the litigation documents here.  (Thank you.)  See especially the government's letter and supporting documents to the district judge asserting the privilege.  (The Arar case is headed for an en banc Second Circuit hearing in December.)  Also take a look at the plaintiff's brief here and here (pages 10-17 of the brief, not the pdf) in El-Masri v. Tenet, the Fourth Circuit extraordinary rendition case.

As to the NSA program, the Eastern District of Michigan and Sixth Circuit cases in ACLU v. NSA provide good materials on the privilege.  The ACLU collects all the litigation documents here and here.  (Thank you.)  These docs give an especially good sense of the arguments: the complaint; district Judge Taylor's ruling on the privilege and standing (see especially pages 3-15 on the privilege); the government's brief on appeal (especially pages 16-19 of the brief, not the pdf); the plaintiff's brief on appeal (especially pages 64-65 of the brief, not the pdf); and the Sixth Circuit's ruling (especially pages 3 and 6 for the privilege as it relates to plaintiffs' standing).

Congress has also gotten involved.  Bills were introduced in both the Senate and the House to regulate the use of the privilege.  These are well worth a look, along with Frost and Florence's recommendations, for examples of operational ways to regulate the use of the privilege.

For more, check out Frost's The State Secrets Privilege and Separation of Powers and Robert M. Chesney's State Secrets and the Limits of National Security Litigation.


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