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The state secrets privilege
|“||is a judicially created evidentiary privilege that allows the government to resist court-ordered disclosure of information during civil litigation, if there is a reasonable danger that such disclosure would harm the national security of the United States.||”|
Although the common law privilege has a long history, the U.S. Supreme Court first described the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds.
If the state secrets privilege is appropriately invoked in civil litigation, it is absolute and the disclosure of the underlying information cannot be compelled by the court. Still, a valid invocation of the privilege does not necessarily require dismissal of the claim. In Reynolds, for instance, the Supreme Court did not dismiss the plaintiffs' claims, but rather remanded the case to determine whether the claims could proceed absent the privileged evidence. Yet, significant controversy has arisen with respect to the question of how a case should proceed in light of a successful claim of privilege. Courts have varied greatly in their willingness to either grant government motions to dismiss a claim in its entirety or allow a case to proceed "with no consequences save those resulting from the loss of evidence." Whether the assertion of the state secrets privilege is fatal to a particular suit, or merely excludes privileged evidence from further litigation, is a question that is highly dependent upon the specific facts of the case.
- ↑ Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act, at 1.
- ↑ 345 U.S. 1 (1953) (full-text).
- ↑ Id.
- ↑ Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079 (9th Cir. 2010) (full-text) (holding that there was no feasible way to litigate case alleging unlawful extraordinary rendition without disclosing privileged state secrets).