By Amanda Frost, associate professor of law, American University Washington College of Law.
The Obama administration's use of the state secrets privilege has thus far been similar to that of its predecessor, so now is the time for Congress to ensure that the privilege is not used to squelch all challenges to national security policy.
The privilege allows the executive branch to withhold documents and information sought in litigation that would pose a risk to national security. The Bush administration frequently went even further, arguing that the privilege operated as a jurisdictional bar that required the immediate dismissal of cases whose "very subject matter" concerned national security, such as those challenging the legality of extraordinary rendition and warrantless wiretapping. (A history of the privilege, and proposals for reform, are described in an ACS Issue Brief entitled Reforming the State Secrets Privilege, which is now available in the new issue of Advance: The Journal of the ACS Issue Groups.)
Although many hoped that the Obama administration would change course and rein in use of the privilege, thus far the administration has continued to assert the privilege with the same broad strokes as its predecessor. Just last week, the Solicitor General's office filed an amicus curiae brief arguing that the state secrets privilege is grounded in the President's constitutional role in military and foreign affairs. The amicus brief comes on the heels of the Obama administration's claim before the Ninth Circuit that the privilege requires immediate dismissal of a case challenging the legality of extraordinary rendition-a position the Ninth Circuit rejected in its recent decision in Mohamed v. Jeppesen Dataplan Inc.