Examining The State Secrets Privilege

In a democracy, the public should have the right to know what the government is doing. Secrecy should be the rare exception, reserved for a few cases in which the national security is truly at stake. This book is the hearing before the Committee on the Judiciary, United States Senate that took place on February 13th 2008. While considering the state secrets privileges, assertions of the privilege by the executive branch were examined as well.The state secrets privilege is a common law evidentiary privilege that shields sensitive national security information from disclosure in litigation. The government is the only party that can assert the privilege, and application of the privilege can result in dismissal of civil litigation. The United States Senate, in this book, discuss the importance that courts act as an independent check on the government when it asserts the state secret privilege. It proposes a policy designed to promote a meaningful, independent review.

Examining the state secrets privilege: protecting national security while preserving accountability: hearing before the Committee on the Judiciary, United States Senate, One Hundred Tenth Congress, second session, February 13, 2008.

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The state secrets privilege is a judicially created evidentiary privilege that allows the gov¿t. to resist court-ordered disclosure of info. during litigation, if there is a reasonable danger that such disclosure would harm the nat. security of the U.S. Contents of this report: (1) U.S. v. Reynolds: Asserting the Privilege; Evaluating the Validity of the Privilege; Effect of a Valid Privilege; (2) Totten v. U.S.: Special Case of Nonjusticiable Contracts for Espionage; (3) Classified Info. Procedures Act and Secret Evidence in Criminal Litigation:Withholding Classified Info. During Discovery; Confrontation Clause and the Use of Secret Evidence at Trial; (4) Legislative Modification of the State Secrets Privilege: Foreign Intell. Surveillance Act; State Secrets Protection Act.

The state secrets privilege is a judicially created evidentiary privilege that allows the gov¿t. to resist court-ordered disclosure of info. during litigation, if there is a reasonable danger that such disclosure would harm the national security of the U.S. The Classified Info. Procedures Act provides pretrial procedures that permit a trial judge to rule on questions of admissibility involving classified info. before introduction of the evidence in open court. Contents of this report: (1) U.S. v. Reynolds: The Seminal Case: Asserting the Privilege; (2) Totten v. U.S.: The Special Case of Nonjusticiable Contracts for Espionage; (3) The Classified Info. Procedures Act and Secret Evidence in Criminal Litigation; and (4) Legislative Modification of the State Secrets Privilege.

Contrary to popular assumption, the development of stronger oversight mechanisms actually leads to greater secrecy rather than the reverse. When Should State Secrets Stay Secret? examines modern trends in intelligence oversight development by focusing on how American oversight mechanisms combine to bolster an internal security system and thus increase the secrecy of the intelligence enterprise. Genevieve Lester uniquely examines how these oversight mechanisms have developed within all three branches of government, how they interact, and what types of historical pivot points have driven change among them. She disaggregates the concept of accountability into a series of specified criteria in order to grapple with these pivot points. This book concludes with a discussion of a series of normative questions, suggesting ways to improve oversight mechanisms based on the analytical criteria laid out in the analysis. It also includes a chapter on the workings of the CIA to which a number of CIA officers contributed.