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One of the world’s main concerns over the past decades has been the phenomenon of terrorism. It is evident that terrorism must be eradicated, especially considering the huge threat it poses to the basic values of democratic societies. However, it must be kept in mind that arbitrary governments also represent a huge threat to these same values and, therefore, safeguards must exist to guarantee that state authorities act within the framework of law. Unfortunately, some governments misuse the ‘state secrets privilege’ argument, created to protect their right to confidentiality in national security affairs, to prevent their gross violations of human rights from being assessed by the judiciary, violating victims’ rights and promoting impunity. This is particularly true in cases involving so-called ‘extraordinary renditions’ used to fight terrorism. This article defends the premise that as much as the existence of secrecy is essential for the protection of every nation, no secrecy can serve as an excuse for governments to violate human rights and disregard the rule of law. In order to ensure that state secrets privilege is not used as a way to promote impunity for serious human rights violations, it is very important that mechanisms are implemented in order to have the claim of secrecy in national security related issues closely scrutinised by an impartial judicial organ. It is in the interest of democracy and justice that a fair balance is struck between the interests of national security and the protection of human rights.

The topic we have been asked to address is how secrecy presents an obstacle to civil and criminal litigation. The underlying assumption is that suppressing information affects the judicial system in detrimental ways. At some level, this is clearly true. Any student of national security law could provide ready examples. If the government refuses to confirm or deny that an individual has been a target of surveillance, it takes little by way of imagination to understand how standing doctrine may prevent litigation from moving forward. Pari passu, classified procedures and parallel construction may prevent criminal defendants from ever being able to challenge potentially unconstitutional provisions — much less evidence amassed against them. No more so is it difficult to see how judicially-created rules, such as state secrets privilege, impair the progress of civil and criminal cases. Between 2001 and 2009, the government asserted state secrets in more than one hundred cases, even as the doctrine’s shadow fell over dozens of others. Since then, there have been more than 200 cases involving claims that the suit cannot continue without revealing sensitive information. The doctrine has blocked complaints related to breach of contract, patents, trade secrets, fraud, and employment termination. It has prevented wrongful death, personal injury, and negligence suits from moving forward, as well as cases brought against telecommunications companies for acting outside the law; torture suits; environmental degradation claims; breach of contract suits; and defamation litigation. Even more pernicious are clandestine interpretations of the law that depart from ordinary standards and allow for significant powers to be assumed entirely beyond public scrutiny. When the Office of Legal Counsel (OLC) issues legal opinions that are binding on agencies, yet cloaked from public view (such as the John Yoo memo secretly approving the use of torture), or when the National Security Division (NSD) secretly embraces a sui generis interpretation of the law (as it did in the bulk telephony metadata collection program), the fact that these interpretations are hidden from public view prevents those harmed from bringing legal challenges. The issue is thus not just whether secrecy may have a harmful impact on civil and criminal litigation. It is how secrecy affects the conduct of trials and the legal system writ large. In other words, the problem with the topic is not that its underlying assumption is necessarily erroneous, but that the query is too narrow: it fails to question what we mean by “secrecy” and to fully consider its affect, ranging from conditions under which it may be beneficial to the legal system, to the impact of secrecy on the morality of law (and obedience to the law), as well as the rule of law. While many theorists consider secrecy inimical to the state, examination of its precise role has been extremely limited. This chapter, accordingly, lays out a functional theory of secrecy, considering its role in relation to four areas: deliberation, information security, law, and adjudicatory processes. Drawing particular attention to how secrecy operates in the realm of national security law, it posits that whether and to what extent cloaking information advances the interests of the liberal, democratic state varies according to how it operates in each category.

Although the state secrets privilege dates back to a poorly reasoned Supreme Court decision in United States v. Reynolds (1953), proponents of the privilege claim it can be traced much further back to the Aaron Burr trial of 1807. As will be explained, that interpretation is entirely in error, so it is best to initially explain what the privilege is intended to cover and why the Burr trial supplies no support. This article will closely analyze Reynolds and its application during the Bush II and Obama administrations. In most trials, litigants are expected to argue publicly and vigorously in their briefs and during oral argument. These unrestrained exchanges are needed to properly inform the court, give contending parties an opportunity to present their case, and check governmental abuse. Under the state secrets privilege, a court might accept the government's assertion that certain evidence may not be publicly revealed because it would risk national security. One option is for the court to ask the executive branch to share the sensitive document in camera, with the other side excluded. However, a court may also decide not to examine the document at all, preferring to defer entirely to executive claims. In subsequent years, as with the Reynolds case, it is possible for a court to discover that a contested document not only contains no sensitive information but reveals government negligence and abuse. There is substantial risk that the executive branch will deceive the courts. The Aaron Burr Trial In its brief submitted to the Supreme Court in 1952 in the Reynolds case, the Justice Department cited the Aaron Burr trial of 1807 as a precedent for the state secrets privilege (U.S. Department of Justice 1952, 10-11). The department produced a list of what it called successful assertions of the evidentiary privilege, offering this as the second example: "Confidential information and letters relating to Burr's conspiracy" (ibid., 24). That statement is false, but in 1977 a federal district court, apparently guided by the Justice Department, claimed that the state secrets privilege "can be traced as far back as Aaron Burr's trial in 1807." (1) In 1989, the D.C. Circuit acknowledged that the "exact origins" of the privilege "are not certain," but nevertheless placed its "initial roots" in Burr's trial and its "modern roots" in Reynolds. (2) According to a different federal district court in 2004, the origins of the privilege "can be traced back to the treason trial of Aaron Burr." (3) The decision in 2004 correctly noted that during the trial Burr sought access to letters that General James Wilkinson--the primary government witness against him--had sent to President Thomas Jefferson. According to the Jefferson administration, the letters "purportedly contained information" about Burr "of whose guilt," Wilkinson said, "there can be no doubt." Initially, the government objected to producing those documents, asserting it was "improper to call upon the president to produce the letter of Gen. Wilkinson, because it was a private letter, and probably contained confidential communications, which the president ought not and could not be compelled to disclose. It might contain state secrets, which could not be divulged without endangering the national safety." The government further argued that "[i]f the letter contained state secrets which it would be inconsistent with the public safety to disclose, the president could say so in the return to the subpoena." (4) According to the Jefferson administration, even before the trial began and evidence could be introduced and evaluated, there could be "no doubt" about Burr's guilt. The private letter "probably" contained confidential information. The letter "might" contain state secrets, and if by some chance it did have state secrets its disclosure would "endanger" the nation. Why would anyone give credence to such vague, speculative, and undocumented arguments? …

When those swept up in counterterrorism operations try to hold governments accountable for rights violations, legal secrecy doctrines such as the “state secrets privilege” and “public interest immunity” frequently derail their efforts. This article shows the effects of legal secrecy doctrines on efforts to hold officials accountable for rights violations in counterterrorism cases. It sets out the limits imposed by international human rights law on these secrecy doctrines, and it explores how these limits are handled in US and British courts. Finally, it sets out requirements in order for legal secrecy practices to comply with international human rights law.

This selective annotated bibliography is a guide to scholarly articles about use of the State Secrets Privilege during the War on Terror. Use of the privilege became controversial during the presidential administration of George W. Bush, resulting in a scholarly debate over the privilege and the propriety of its use in litigation concerning measures taken by the United States government in the years following the terrorist attacks of 11 September 2001. This bibliography is intended to provide an overview of the scholarly literature to lawyers, scholars, and students.

During the 2008 presidential campaign, Barack Obama promised that if elected he would have the most transparent administration in history. This article offers a systematic analysis of whether the Obama administration lived up to this promise so far. A variety of quantitative and qualitative indicators of information policy are examined. These include quantitative evidence collected by the Information Security Oversight Office, as well as qualitative analysis of policies initiated or continued under President Obama. While the administration made great strides toward greater transparency in some areas, its shortcomings in others—notably the prosecution of accused leakers and the assertion of the state secrets privilege in multiple court cases—prevented it from living up to its stated goal.

Contents: Preface Introduction: Congress and the President after September 11 The constitutional framework Emergency powers The aftermath of Abu Ghraib and the need for Congressional action The case against secret evidence Extraordinary renditions and the state secrets privilege Civilian control of the military and attempts to politicize military lawyers The case for Congress Index.

From the start of his presidential campaign through his first year in office, Barack Obama took a strong stance on national security issues involving terrorism. He reoriented American military efforts from Iraq to Afghanistan, from quelling sectarian conflicts between Shi'a and Sunni in a country that presented no threat to American national security, to targeting Taliban and the remnants of al-Qaeda in another. And he reoriented American strategy from a defensive holding pattern to an offensive "clear and hold" in the Taliban heartland. Obama expanded the theater of war against the Taliban and al-Qaeda: and he greatly expanded the use of drones in the borderlands of Pakistan for "targeting killing" of Taliban leaders and may also have authorized covert operations on the ground. Obama laid out much of the strategy in a speech at the National Archives Museum on May 21, 2009: "for the first time since 2002, we are providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan." Obama claimed that the decisions of his predecessor had taken the nation "off course" and promised that he would deal with the terrorism threat "with an abiding confidence in the rule of law and due process; in checks and balances and accountability. He noted that he had banned "enhanced interrogation" techniques, ordered the closing of the prison camp at Guantanamo, ordered a review of all pending cases there (involving 240 people), and brought the military commissions in line with the rule of law. Later he would announce that some cases would be transferred to federal courts, including that of Khalid Sheikh Mohammed, alleged planner of the 9/11 attacks, and he would treat Umar Farouk Abdulmutallab, the so-called Christmas Bomber, as a criminal suspect rather than an illegal combatant. He also took credit for developing due process standards to apply to those the government would wish to detain indefinitely. He promised more transparency, where it would not compromise national security, and stricter standards in invoking the state secrets privilege. Obama's speech raises two issues: Did he carry out these policies? And if so, how significant a change were they? John Brennan (an assistant to former President George W. Bush) saw continuities rather than change, referring to "Bush's third term." Kori Schake (a scholar at the Hoover institution) summed up Obama's policies as follows: "Defeat al Qaeda, check. Hold Afghanistan, check. Partnership with Pakistan, check. Sharing intelligence and training militaries in East Africa, check. Going after terrorist financing, check. Disrupting terrorist operations, check. Prevent terrorists from getting nuclear weapons, check. Ensure our military has the troops and the tools it needs, check. Strengthen the intelligence community, check. Defend the homeland, check" (2009). Those who saw continuity could point to key Obama appointments or retentions: Robert Gates as secretary of defense, David Petraeus at the central command, and Stanley McChrystal on the ground in Afghanistan. Obama also appointed a host of former advisors and aides in Bush's Pentagon to positions in the Central Intelligence Agency (CIA), Homeland Security, and the units in the Pentagon dealing with the detainees. Col. William Lietzgau, formerly special advisor in the Pentagon during the Bush administration, who played a key role in establishing the military commissions, was appointed to become deputy assistant secretary for detainee affairs in the Department of Defense (DOD). CIA operations were led by Steve Kappes and Mike Sulick, who had been involved in the CIA's RDI (renditions, detentions, interrogations). Those leaving the Obama administration early on, such as Philip Carter (who had held the post before Lietzgau), helped to develop procedures allowing prisoners in Afghanistan to challenge their detention and had recommended closing Guantanamo. …

In response to newspaper disclosures in December 2005 about secret eavesdropping by the National Security Agency (NSA),1 a number of lawsuits challenged the constitutionality and legality of the program. The George W. Bush administration invoked the state secrets privilege as an abso lute bar to litigation whenever the administration determines that the dis closure of agency documents would harm national security. In relying on the privilege in one NSA case, the Justice Department argued that its assertion "assuredly [is] not any indication that the allegations the plaintiffs are making are necessarily true. Nor is it an indication that the allegations are necessarily false. They're instead a function of the subject matter of those allegations. The reality is that given the nature of those allegations, it would expose state secrets for them to be either confirmed or denied."2 Whether such phone companies as ATT it's a secret of the highest order."3 On 12 May 2006, a federal district court ruled that Khaled El-Masri could not bring suit against the government on the grounds that he was illegally detained as part of the CIA's "extraordinary rendition" program, tortured, and subjected to other inhumane treatment. The court held that the state secrets privilege had been validly asserted.4 In a similar case, Maher Arar sued the government for having him removed to Syria for the express purpose of deten

It is well-settled that the national government has an evidentiary privilege protecting state and military secrets. The privilege protects information that can be vital to the country’s safety and survival. It was expectable that the national government would begin asserting the privilege more frequently after 9/11. The government has invoked the privilege in several prosecutions of alleged terrorists. However, the privilege also applies in civil actions. Indeed, the government may assert the privilege in a civil action even when the government is not joined as a party. The government has the right to intervene for the purpose of claiming the privilege. In recent years, the government has asserted the privilege in a large number of civil actions, including cases involving high technology companies, private security firms, infrastructure contractors, and weapons and aircraft manufacturers. When the government successfully asserts the privilege in a civil action in which it is not a party, the question naturally arises: What is the procedural effect of the assertion? As the quotations at the beginning of this article indicate, the generalization has been that the only effects are that the privileged information becomes unavailable as evidence and that the case can proceed without the privileged evidence. However, Part I of this article demonstrates that that generalization is a gross over-simplification. In many cases, the court terminates the litigation, resulting in a peremptory victory for the defense. The plaintiff loses the opportunity to conduct discovery or take the case to trial. Part II of this article presents a critical evaluation of the current state of the law. The primary thrust of Part II is that at least in one set of circumstances, the plaintiff ought to be permitted to proceed – namely, when (1) the plaintiff has sufficient unprivileged evidence to present a prima facie case, (2) proceeding would not raise a significant risk of the inadvertent revelation of privileged information, (3) the privilege claim affects the defense’s ability to develop an affirmative defense, and (4) the defendant has a closer relationship to the government than the plaintiff. A factual proposition is considered an affirmative defense because the law assigns the defendant the burdens of pleading, production, and proof on the proposition. The allocation of these burdens to the defendant can be outcome determinative. If there were sufficiently weighty policies to assign those burdens to the defendant, in these circumstances the defendant should also bear the burden of the loss of the privileged evidence. The government’s privilege claim neither extinguishes nor diminishes the policies that originally warranted assigning the burdens to the defense. Part II adds that there is a colorable argument that the plaintiff should also be permitted to proceed when the government claim interferes with the defendant’s ability to present a simple defense, merely negating an element of the plaintiff’s case. Part II emphasizes that although the plaintiff should be permitted to proceed in these exceptional cases, the court should not grant the plaintiff the sort of peremptory victory that the defense usually obtains after the government’s claim. Even when the plaintiff proceeds, it is not a foregone conclusion that there will be a plaintiff’s verdict. A key plaintiff’s witness may become unavailable for trial, a nervous witness might forget information critical to the plaintiff’s case, or the witness may display negative demeanor that prompts the jury to disbelieve the witness’s testimony. Hence, the judge should neither enter summary judgment for the plaintiff nor direct a verdict in the plaintiff’s favor. However, the thesis of this article is that in these cases the law should be reformed to accord the plaintiff an opportunity to proceed and fairly win a verdict.

We examine rules of evidence and liability in contract litigation. When a contractor fails to perform, it has a legal defense that the buyer withheld private information relevant to the performance of the contract. Suppose the buyer claims that admitting evidence for the defense would compromise a valuable secret, e.g., a state secret, what should the legal rule be? We show that the evidentiary rules introduced by the Supreme Court in General Dynamics v. U.S. lead to a more efficient outcome than either a strict liability rule or an evidentiary rule requiring the disclosure of the buyer's private information.

Starting from the analysis of the European Court judgment in El-Masri , with an eye to legal reasoning related to the right to the truth, this chapter addresses the innovative reverse path followed by this right, from the well-established case law of Inter-American Court of Human Rights in San Jose, to the Chamber of the European Court of Human Rights in Strasbourg. In July 2009, assisted by the Open Society Justice Initiative, El-Masri lodged a complaint against the Republic of Macedonia with the European Court of Human Rights, seeking compensation for the torture and other cruel. The European Court in El-Masri undoubtedly paid a high tribute to the Inter-American Court of Human Rights. The innovative and reverse path followed by the right to the truth could mark a new era of positive dialogue and mutual influence between courts, "competing" with each other to afford human rights the highest standards of protection. Keywords: El-Masri ; European court; human rights; innovative reverse path; Inter-American court

In light of the litigation surrounding the Belfast Project—an oral history collection of Northern Irish paramilitaries involved in the Troubles—the concept of archival privilege has resurfaced. First invoked in the 1980s to protect a collection from subpoena, archival privilege harkens to the idea that the importance of the historic record is greater than legal process. But what exactly is archival privilege? Unlike journalists shielding their sources or spouses preserving their relationship, archival privilege is about protecting information and documentation. With the focus on information and documentation, it becomes apparent that perhaps State Secrets Privilege or the work-product doctrine should serve as models for the privilege itself. However, when it comes to bringing archival privilege into existence, there is no better example to follow than that of the journalists who willed their privilege into existence, not just through common law, but through legislative action. In this paper, I will first discuss the possible extent and application of archival privilege based on existing privileges, and then, using New York's Shield Laws as an example, I will outline the legislative push necessary to make archival privilege a reality.

The state secrets privilege has received a tremendous amount of scholarly attention in the U.S. in the last decade. In September 2009, the Obama administration created a new policy that mandated a more rigorous internal administrative review prior to invoking the state secrets privilege. It appears as though this internal review process has resulted in little difference with regard to the invocation of the privilege at the pleadings stage in cases that allege torture and other human rights abuses. This chapter of the forthcoming comparative law volume "Secrecy, National Security and the Vindication of Constitutional Law" (David Cole, Federico Fabbrini & Arianna Vedaschi, eds.), considers the state secrets privilege and places the formalist decision-making of the Mohamed court in juxtaposition with other nations’ jurisprudence – including the English courts that dealt with a separate lawsuit brought by Mohamed there. The Author concludes that given the Obama administration’s aggressive invocation of the state secrets privilege and the judiciary’s unwillingness to defend the ability of individuals to litigate their basic human and civil rights, the United States Congress must re-introduce state secrets reform legislation that infuses the litigation process with procedural and substantive fairness. Additionally, courts must step away from judicial formalism and instead take on the complex and difficult task of providing a venue for government accountability.

The purpose of the article is to compare the American evidentiary rule of “state secrets privilege” with the Polish regulation of Article 248 § 1 of the Code of Civil Procedure. This issue, in particular, gains importance in the light of legal changes that occurred in the USA and most developed countries in the aftermath of the 11th September 2001 attacks and the so-called “war against terrorism”. The author presents the genesis and evolution of the privilege, the history of its application, as well as doubts which it has aroused in terms of civil rights. The American solutions make up a point of reference for the Polish regulations of the Code of Civil Procedure. A dogmatic analysis of Article 248 § 1 of the Code offers a broad platform for discussions about its compliance with the Constitution of the Republic of Poland, as well as, noted legal loopholes in the law of civil procedure, in connection with the protection of classified information. The author underlines the fact that, after the regime transformation in Poland, the right to information gained the status of a public subjective right, but it had a very little impact on the shape of the civil process. He points to the implications of the fact that Polish legislators departed from the principle of objective truth in the process, for the sake of the principle of formal truth, commonly accepted in Western legal culture.

Using torpedo development as a case study, this article examines the tension between the national security interests of the state and the intellectual property interests of defense contractors in the United States before World War I. It suggests that this tension constitutes an under-explored part of the history of the modern “state secrets privilege”, and that fuller comprehension of this history has the potential to reshape powerful narratives of modern US history.

One of the main obstacles in criminal and civil proceedings involving intelligence and executive officials is the objection to disclosure of information and evidence on the basis of national security privilege. Known as the "state secrets privilege" in the United States and “public interest immunity” in England, this evidentiary rule has been invoked successfully in an increasing number of cases in the US and England. Indeed, the privilege has been identified as one of the most serious obstacles to effective human rights remedies. In this essay, I discuss the use of national security privilege in civil litigation in the three jurisdictions, focusing specifically on the role the privilege has played in blocking claims by purported torture survivors and other victims of anti-terrorism activities in the US and England. I also evaluate the potential impact of the privilege on a torture survivor’s civil claim, when such a case ultimately goes to trial in Canada. My conclusion, based on the approach courts have taken to the public interest balancing exercise, is that it will be very difficult for private litigants to obtain disclosure of information over which a claim of privilege has been made.

The following essay analyzes the state secrets privilege in its present incarnation, an evidentiary privilege capable of causing pre-discovery dismissal, in order to determine whether it can be reconciled with the original meaning of the Constitution. Part I traces the judicial origins and explanations of the privilege, in order to define its scope and effects at present. Part II discusses the textual, structural and historical arguments in favor of the constitutionality of the present incarnation of the state secrets privilege. As will be explained later, the constitutional text permits, implicitly, the use of the state secrets privilege, in its capacity as an adjunct to the executive power. Second, the constitution’s structure necessitates the existence of such a privilege. The nature of the judicial and legislative branches, confronted with the exigencies of statecraft, especially in light of the shortcomings of the Articles of Confederation, required a unitary executive capable of controlling and prioritizing information implicated by matters of foreign affairs, even by restricting the flow of information to Congress and the Courts. Finally, presidential practice, judicial acquiescence and the understandings of the framing generation augur for the privilege’s constitutional legitimacy. When judges have confronted its exercise, they have, by and large, abdicated any ability to countermand it. Rather, they have tied its use to two sources, the Anglo-American common law of evidence and the structural position of the executive within the constitutional framework. This article analyzes the latter source, to show that courts are correct to say that the privilege “performs a function of constitutional significance.”

With the end of the War in Iraq announced by sitting President Barack Obama in 2011, another opportunity arises for accountability for instigating that war.An unexplored avenue for accountability for a former American President in the American structure is the state criminal prosecution. This alternative path conducted in appropriate circumstances appears to be foreseen in our constitutional structure. This alternative path is a means for assuring the double protection of the rights of the People as was envisioned by Alexander Hamilton and James Madison. Originally prepared at the invitation of Vincent Bugliosi, this research report explores the opportunities and hurdles for a state (as opposed to federal) criminal prosecution of former President George W. Bush for ordinary state crimes of conspiracy to commit murder and murder for the deaths of American soldiers in the War in Iraq.This research report examines the dual nature of a former President defendant, federalism tensions, separation of powers tensions, state criminal jurisdiction for these crimes, federal officer removal, habeas and other possible interventions in state and federal courts, likely defenses such as federal exclusive domain, federal preemption, state secrets privilege (national security), executive privilege, supremacy clause immunity, qualified immunity, the political question doctrine, the act of state doctrine, self-defense or necessity defenses, sitting President or governor interventions, the innocent agent doctrine, limitations on Presidential War Power including whether there is a possibility of taking the country to war under false pretenses, Curtiss-Wright and the Youngstown trilogy and the United States international law obligations.The research report concludes that, while recognizing the difficulties, such a state criminal prosecution can be done and, as a normative matter with regard to the deaths of American soldiers in the War in Iraq, should be done.The hope is that the research report can serve as a template. The report fleshes out an expressive domestic alternative path to accountability for high-level federal officials that complements federal criminal prosecution, impeachment for political liability, electoral accountability for political liability in our domestic structure, as well as foreign or international tribunal criminal prosecution.

This article discusses the concept of state secrets privilege which is designed to prevent private litigants from gaining access to agency documents sought in cases involving National Security Agency (NSA) surveillance, extraordinary rendition, and other intelligence programs. Before the Reynolds case, the Supreme Court recognized the state secrets privilege. Over the past half century, federal judges gave “deference” to the executive claims on sensitivity and confidentiality of agency records without ever looking at the disputed document. However in 1953, the Supreme Court was misled by the government. Since then, there has been an interest in having Congress enact legislation to assure greater independence for the federal judiciary and provide a more even playing field for private litigants.

This Article explores the connection between government secrecy and a school of thought that I call “presidential supremacy.” Presidential supremacists read the President’s constitutional powers to preclude Congress or the courts from limiting, overseeing, or otherwise checking presidential actions in many cases. Supremacy encompasses, but is not limited to, the school of thought sometimes called “exclusivity.” Exclusivity is the view that statutes that unduly restrict the President’s discretion in either his commander-in-chief or executive capacity are unconstitutional. This Article describes four forms of supremacist reasoning directed against transparency-based checks on the executive: executive privilege, state secrets privilege, exclusivist arguments in support of secret law, and “classified speech” arguments to the effect that classifying information effectively removes it from the protections of the First Amendment. While the Article’s most direct goals are descriptive – to explore supremacist reasoning and the broad and deep impact of the same on transparency and accountability – the goals have normative implications that I flag in the Article and explore in more depth elsewhere. For one thing, I briefly explain in the Article my view that supremacy’s impact on secrecy calls into question its constitutional legitimacy. Furthermore, a point demonstrated in the Article – that executive privilege, state secrets, and classified speech claims vary substantially in their breadth – helps to undermine supremacist arguments that equate relatively narrow historical examples with much broader contemporary claims. The final paragraphs of the Article’s last sub-section before the conclusion – entitled “Discretion to Punish Classified Speech” – includes some thoughts on the developing controversy over WikiLeaks.

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.

A recent decision by U.S. District Judge Vaughn R. Walker in the Northern District of California, al Haramain Islamic Foundation, Inc. v. Bush, has revived a question of national security law and policy long thought to be settled - is control over access to classified information entrusted to the sole discretion of the Executive Branch, and if so can the Judiciary review that determination? Although this case began as an attempt to challenge the constitutionality of the recently discovered Terrorist Surveillance Program (“TSP”), it may present the U.S. Court of Appeals for the Ninth Circuit with an opportunity to rule on the ability of the Executive Branch to protect sensitive military and national security information.This article will evaluate the District Court’s recent discovery orders in al Haramain Islamic Foundation, Inc. v. Bush, focusing on the debate that has ensued over which branch of the United States Government is entrusted with control over access to sensitive national security information. Part I of this article will detail the background and procedural history of the al Haramain litigation, highlighting the facts and circumstances that make the plaintiff unique in the multitude of challenges to the Bush Administration’s Terrorist Surveillance Program. Part II examines the debate over access to classified documents generally as well as the specific issues highlighted by the al Haramain litigation, ultimately concluding that the District court ignored long standing precedent for judicial restraint in cases involving Executive Branch determinations over access to classified material. Finally, Part III proposes a variety of possible solutions that each of the coordinate branches could undertake to resolve the underlying dispute in the al Haramain litigation.