Academic

Page on State Secret Claims

By Lawrence Solum

Michael H. Page (Cornell Law School) has posted Judging Without the Facts: A Schematic for Reviewing State Secrets Privilege Claims (Cornell Law Review, Vol. 93, No. 6, 2008) on SSRN.  Here is the abstract:

The state secrets privilege is unique in that it splits the adjudicatory power between the judicial and executive branches. The precise division of this power has been the subject of increasing political controversy. Yet defenders and critics of the privilege have not sufficiently explained on what theoretical basis "deference" to the executive branch is, or is not, warranted. By identifying precisely why deference is appropriate in certain contexts, one is better able to understand why more or less deference is appropriate in other contexts. This Note draws a sharp distinction between two inquiries: under what conditions should the state secrets privilege apply (trigger test) and who should determine whether those conditions are satisfied (margin of scrutiny deference). The trigger test draws from the "reasonable danger" language in United States v. Reynolds and is a function of three variables: (1) the magnitude of harm to the public; (2) the likelihood that disclosing the information at issue will result in that harm; and (3) how central the information is to the case of the party requesting it. The margin of scrutiny deference then guides the extent to which a judge should trust, with limited information, the executive official's claim that the circumstances of the case satisfy the trigger test. The margin of scrutiny deference is also a function of three variables: (1) the degree to which the executive official is more qualified than the reviewing judge to assess the variables in the trigger test accurately; (2) the likelihood that factors irrelevant to pubic safety influenced the executive official's judgment; and (3) the amount of relevant information that the executive official considered but withheld from the reviewing judge. The result is a schematic that will help guide judges to identify those cases in which deference is more or less appropriate and yet is flexible enough to accommodate a wide range of views regarding how much deference is appropriate in absolute terms.

This is a very interesting student note.

Full post as published by Legal Theory Blog on May 15, 2008 (boomark / email).