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75 Geo. Wash. L. Rev. 1249 (2006-2007)
State Secrets and the Limits of National Security Litigation

handle is hein.journals/gwlr75 and id is 1259 raw text is: State Secrets and the Limits of National Security Litigation Robert M. Chesney* Abstract The state secrets privilege has played a central role in the Justice Department's response to civil litigation arising out of post-9/11 counterterrorism policies, culminating in a controversial decision by Judge T.S. Ellis concerning a law- suit brought by a German citizen-Khaled EI-Masri-whom the United States allegedly had rendered (by mistake) from Macedonia to Afghanistan for inter- rogation. Reasoning that the entire aim of the suit is to prove the existence of state secrets, Judge Ellis held that the complaint had to be dismissed in light of the privilege. The government also has interposed the privilege in connec- tion with litigation arising out of the National Security Agency's warrantless surveillance program, albeit with mixed success so far. These events amply demonstrate the significance of the state secrets privilege, but unfortunately much uncertainty remains regarding its parameters and jus- tifications. Is it being used by the Bush administration in cases like E1-Masri v. Tenet, as some critics have suggested, in a manner that breaks with past practice, either in qualitative or quantitative terms? I address these questions through a survey of the origin and evolution of the privilege, compiling along the way a comprehensive collection of state secrets decisions issued in published opinions since the Supreme Court's seminal 1953 decision in United States v. Reynolds (the collection appears in the arti- cle's appendix). Based on the survey, I find that the Bush administration does not differ qualitatively from its predecessors in its use of the privilege, which since the early 1970s has frequently been the occasion for abrupt dismissal of lawsuits alleging government misconduct. I also conclude that the quantitative inquiry serves little purpose in light of variation in the number of occasions for potential invocation of the privilege from year to year. Recognizing that the privilege strikes a harsh balance among the security, indi- vidual rights, and democratic accountability interests at stake, I conclude with a discussion of reforms Congress might undertake if it wished to ameliorate the privilege's impact. First, with respect to the problem of assessing the merits of a privilege claim, consideration could be given to giving the congressional * Associate Professor of Law, Wake Forest University School of Law. J.D. Harvard Uni- versity. I am grateful to Joshua Cochran of the Gerald R. Ford Presidential Library and Mu- seum for his assistance with the papers of Edward Levi, and to Daniel Taylor of The George Washington University Law School for his assistance with research at the Library of Congress. Special thanks to Peter Raven-Hansen, Leila Sadat, Meg Satterthwaite, and other participants and organizers of the symposium of which this Article is a part, and thanks as well to Bill Banks, Kathleen Clark, Lou Fisher, Amanda Frost, Aziz Huq, Robert Pallitto, William Weaver, and Adam White for their extremely useful comments and criticisms. August 2007 Vol. 75 No. 5/6 1249

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