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Wells on State Secrets & Executive Power

By Lawrence Solum

Christina E. Wells (University of Missouri School of Law) has posted State Secrets & Executive Accountability (Constitutional Commentary, pp. 1-22, March 2010) on SSRN. Here is the abstract:

This essay, part of a symposium on executive power, examines use of the state secrets privilege in the Obama administration. Specifically, it views the Obama administration?s approach to the state secrets privilege through the lens of ?explanatory accountability? ? i.e., the notion that executive officials must explain and justify their decisions or face negative consequences.

Although President Obama entered office criticizing the Bush administration?s overly broad assertions of the state secrets privilege, Obama officials nevertheless continued the Bush administration?s actions in various lawsuits. In response to sharp criticism, however, the Obama administration eventually revealed a new policy promising greater accountability and individualized decision-making regarding assertions of the state secrets privilege. In other words, the Obama administration embraced the notion of explanatory accountability by adopting the new policy.

While the Obama policy shows promise and moves toward greater accountability regarding assertions of the privilege ? at least on paper ? it is simply too vague to serve as an adequate mechanism of explanatory accountability. Furthermore, nothing in the policy requires Obama officials to justify their actions outside of the executive branch, thus allowing them to continue the Bush administration?s trend of broadly asserting the state secrets privilege with little or no justification. Such actions will continue unless the state secrets privilege is substantially altered to give courts the tools to serve as adequate accountability mechanisms. Pending congressional legislation may provide courts with such tools.

Full post as published by Legal Theory Blog on March 24, 2010 (boomark / email).