Academic

George on the States Secrets Privilege

By Lawrence Solum

Beth George (New York University School of Law) has posted Addressing the Incentives Problem of the State Secrets Privilege (New York University Law Review, Vol. 84, December 2009) on SSRN. Here is the abstract:

Over fifty years ago, in Reynolds v. United States, the Supreme Court recognized the Government?s right to invoke the common law state secrets privilege, which allows the Government to withhold evidence from discovery because its revelation would threaten the nation?s security. Decades later, the plaintiffs in the original case discovered that the Government had lied - no state secrets were contained in the document - and the privilege had been abused. Today, there continue to be concerns that the privilege is abused by Government officials. This Note begins by examining the history of the state secrets doctrine and its current problems. Part II then explores the leading proposal for change, which urges substantive judicial review of the actual documents the government claims to be privileged. This Part examines why this solution is unlikely to fully address the core problems of the privilege: the lopsided incentives that encourage the Government to abuse the privilege. Part III then proposes other mechanisms, including methods used in other areas of national security law, that might cabin the privilege and effectively address the incentives that encourage abuse.

This is an interesting student note.

Full post as published by Legal Theory Blog on July 24, 2009 (boomark / email).