Our Very Privileged Executive: Why the Judiciary Can (and Should) Fix the State Secrets Privilege

This paper was first presented at the Temple Law Review Symposium on Executive Power. In Reynolds v. United States, the Supreme Court shaped the state secrets privilege (the Privilege) as one akin to that against self-incrimination. In recent litigation, the government has asserted the Privilege in motions for pre-discovery dismissal, thus transforming the Privilege into a form of executive immunity. This Paper argues that courts must step in to return the Privilege to a scope more in keeping with its status as a form of evidentiary privilege. After reviewing the doctrinal origins of the Privilege, the Paper explores three types of issues implicated by the government\u27s invocation of the Privilege. The government, in calling for judicial deference to executive assertions of the Privilege, often realies on (1) separation of powers arguments or on (2) arguments sounding in institutional competence. Courts are often swayed by such arguments and thus give relatively little consideration to the (3) conflict of interest inherent in the government\u27s assertion of the Privilege and the impact of the successful invocation of the Privilege on the rights of individual litigants. The Paper then proceeds to address arguments that Congress can provide a check on executive abuse of the Privilege. The Paper argues that, assuming that Congress has constitutional authority, it lacks the will or the institutional competence to provide a proper solution to the problems raised by the Privilege. Instead, the Paper contends that, since courts created the Privilege, courts are best positioned to rein it in. The final section of the Paper provides examples drawn from case law illustrating mechanisms whereby courts can protect state secrets while also giving litigants adverse to the government their day in court