Constitutional Law: State Secrets PrivilegeThe Law Library of Congress is proud to present four constitutional law items focusing on the State Secrets Privilege. The two articles, one statement to Subcommittee on the Constitution, Civil Rights, and Civil Liberties, and one statement to the Senate Committee on the Judiciary are available in their entirety in PDF on our Web site.
Louis Fisher, "The State Secrets Privilege: Relying on Reynolds," 122 Pol. Sci. Q. 385 (2007). The George W. Bush administration has invoked the state secrets privilege as an absolute bar to litigation whenever the administration determines that the disclosure of agency documents would harm national security. The cases involve such areas of law as NSA surveillance and extraordinary rendition. This article analyzes the Supreme Court case relied on primarily by the administration, United States v. Reynolds (1953), which for the first time recognized the state secrets privilege. The Court's decision did great damage to the integrity of the judiciary, the rights of private litigants, and the constitutional system of checks and balances.
Statement by Louis Fisher, presented to the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Committee on the Judiciary, "Reform of the State Secrets Privilege," January 29, 2008. Following the terrorist attacks of 9/11, assertions of the state secrets privilege pose a greater threat to constitutional government and individual liberties in such cases as NSA surveillance and extraordinary rendition. Even if it appears that the administration has acted illegally, the executive branch advises federal judges that a case cannot allow access to documents without jeopardizing national security. Self-interested executive claims may override the independence of the federal judiciary, the corrective mechanism of checks and balances, and the right of private litigants to have their day in court. Congress needs to enact legislation to strengthen the adversary process that we use to pursue truth in the courtroom.
Statement by Louis Fisher, appearing before the Senate Committee on the Judiciary, "Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability," February 13, 2008. The state secrets privilege is now a central issue and Congress is the appropriate branch of government to supply much needed procedures and governing principles. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. The executive branch is not entitled to "utmost deference" or even "deference." In the past, federal courts have been misled by executive claims about national security, including in the seminal case of United States v. Reynolds (1953).
Louis Fisher, "People v. State: Security Secrets Must be Weighed Against American's Broader Interests," Legal Times, October 1, 2007, pp. 66-67. In recent cases involving state secrets, federal judges typically put the plaintiff's interest on one side of the scale and the government's interest (or "national interest") on the other. Under this test, the individual can be guaranteed to lose every time. Judicial analysis following this standard protects neither the plaintiff nor the nation. There is no national interest in picking up the wrong person (Khalid el-Masri, for example) and keeping him in prison for five months. El-Masri was not merely presenting his own interests. He represented every individual, U.S. citizen or alien, who wants to avoid a similar fate. Judicial deference to executive claims does not protect the national interest or the system of checks and balances.
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