The State Secrets Privilege and the Deference Thesis

by Bobby Chesney

I appreciate Adrian’s thoughtful response to my post on military detention, and would now like to shift gears to a distinct topic of at least equal current significance: the state secrets privilege (“SSP”).

We could have a whole symposium on this issue alone, no doubt. In fact, we had one a few months ago over at my usual blogging abode, National Security Advisors; I strongly recommend that exchange for anyone who wants to get down into the details of the SSP debate. I do not propose to rehash the entirety of that debate here, though, but instead simply to flag this topic as one in which the deference thesis is currently in issue in live litigation; anyone who has listened to last week’s oral argument in Hepting v. AT&T Corp, before a Ninth Circuit panel, will appreciate that there continues to be great uncertainty even among judges with respect to (a) the doctrinal details through which the SSP is implemented and (b) the separation of powers principles that should give rise to those details (see in particular the exasperated exchange between Judge Pregerson and Dep. SG Garre with respect to the deference judges owe in this context).

According to the Supreme Court’s 1953 decision in Reynolds, the substantive test for application of the privilege is whether disclosure of the information in issue poses a “reasonable” risk of harm to national security. As a formal matter, the existence of such a risk must be expressly asserted by the head of the agency or department with responsibility for that information (the DNI, for example). At the same time, the majority in Reynolds expressly rejected the proposition that the mere assertion of the privilege by the executive should bind the court; whatever deference the executive official should receive, it ultimately is the responsibility of the court to decide whether the reasonable-risk predicate truly has been satisfied.

Assuming that description of the doctrinal status quo is correct, would the deference thesis require a shift in the doctrine such that the executive invocation of the privilege becomes dispositive? I’m not sure that this is so—perhaps the thesis would cash-out in this context precisely where the doctrine already is—but if it is, then it seems to me that this would not be desirable. On one hand, the existence of at least some prospect for judicial review has a salutary effect: the possibility that a judge might reject an assertion of the privilege serves an important role in disciplining executive officials in their invocation of it, counterbalancing any temptation there might be to invoke the privilege in entirely unwarranted circumstances (something that I think would be rare, but which I would not rule out). Against that benefit, there is a potential cost: a judge might improperly reject a valid invocation of the privilege (something that I think would be rare, but which I would not rule out).

Does one consideration outweigh the other? Before answering that question, I think it is important to recall the relatively-forgiving substantive standard to which the judge holds the executive official: demonstration of a reasonable risk to national security should disclosure occur. Because that threshold is quite low, it is relatively difficult for a judge to plausibly assert that the executive official has not satisfied it (indeed, this is the cause of considerable criticism of current SSP doctrine). As a consequence, the potential for unwarranted rejections of the privilege is constrained relative to what might occur under a tougher predicate requirement. I can’t quantify the resulting costs of permitting second-guessing by the judge, and therefore can’t entirely follow through on this cost-benefit analysis. Still, this constraint on the judicial error variable gives me some reason to believe that the benefits are indeed worthwhile.

(Knowing that many readers are extremely critical of the SSP, by the way, I feel obliged to add at this point that I do think that there is room for creative measures designed to alter the SSP status quo in limited ways. I’ve argued elsewhere that Congress should consider creating FISC-like fora for litigation of certain claims that otherwise would be dismissed under the SSP, and that there might even be ways to provide expert assistance to judges engaged in the process of considering whether the reasonable-risk standard has been met in a given case.)

That probably will be my final contribution to this terrific discussion. I’d like to thank Roger and the rest of the OJ crew for having me, the other participants and commentators for their thought-provoking observations, and Eric and Adrian for making such a significant contribution to the literature.

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