KEEP IT SECRET, KEEP IT SAFE: AN EMPIRICAL ANALYSIS OF THE STATE SECRETS DOCTRINE.

The state secrets doctrine provides both an evidentiary privilege and a categorical bar against litigation that implicates national security concerns. The U.S. government has invoked the state secrets doctrine to insulate certain programs, including rendition and surveillance operations, from oversight by the courts. Despite a surge of interest in the state secrets doctrine after September 11, 2001, few scholars have used statistical analysis to evaluate courts' treatment of the issue. This Note employs a dataset containing over 300 state secrets cases--larger and more complete than in any previous statistical study--to explore state secrets jurisprudence. I find that the state secrets doctrine has been asserted much more frequently after September 11 than it was before. However, in cases to which the government is a party, courts tend to uphold and deny those assertions at roughly the same rate. In litigation between private parties, courts have mostly avoided ruling on state secrets issues since September 11, a dramatic change from the pre-September 11 era. I also identify and analyze two other important trends: First, courts appear to be more skeptical of state secrets claims in Fourth Amendment cases than in most other types of cases. Second, criminal defendants have particular difficulty in overcoming state secrets privilege claims, especially after September 11. Through case analysis, I conclude that the data alone reveal no obvious abuse of the state secrets doctrine by either the executive or the judiciary. Nonetheless, the frequency with which courts uphold the government's invocation of the state secrets privilege, and the circumstances under which they do so, suggest that the state secrets doctrine often conflicts with some of our most fundamental democratic principles. [ABSTRACT FROM AUTHOR]