The Bush and Obama Administrations' Invocation of the State Secret Privilege in National Security Litigation: A Proposal for Robust Federal Judicial Review

Abstract

The Justice Department under the Bush Administration repeatedly invoked the State Secrets Privilege (SSP) in high-profile national security litigation cases challenging many of the controversial practices instituted in response to the September 11th, 2001 terrorist attacks. Furthermore, in all national security-related litigation still pending from the Bush Administration era and in newly developed cases, the Obama Administration has, to the dismay of many, declined to reverse this policy. From litigation challenging the practice of extraordinary rendition to the issue of wiretapping US citizens without judicial approval, the Obama Justice Department has continued to invoke the SSP, concluding that any legal challenges against national security-related programs would necessitate disclosure of high-secret discovery materials and could potentially harm American national security. This paper critiques some of the arguments advanced for how to reform the privilege, such as the State Secrets Reform Act, S. 2533, “A bill to enact a safe, fair, and responsible state secrets privilege Act” that would significantly seek to constrain presidential authority in this area. I argue against congressional reform, and instead assert that the proper basis for reformation should come from the judiciary itself. The conventional default deference given to the Executive Branch should be dramatically curtailed in favor of a more robust procedural guarantee of judicial review. This argument stands against proposed reform from Congress, and instead focuses on ways in which federal judges can better police presidential assertions of privileged information in national security litigation.