ACS is pleased to distribute an Issue Brief by Amanda Frost, Associate Professor of Law at American University’s Washington College of Law, and Justin Florence, an associate at O’Melveny & Myers, LLP, and nonresident fellow at the Georgetown Center on National Security and the Law. This Issue Brief, entitled Reforming the State Secrets Privilege, was featured as part of ACS’s recent event, "A Fresh Start for a New Administration: Reforming Law and Justice Policies," which marked the release of a collection of proposals for the next Administration.

In this Issue Brief, Professor Frost and Mr. Florence describe the origins of the state secrets privilege and the history of its use by the government, particularly by the Bush Administration since September 11, 2001. The authors detail how the privilege is now being asserted as a basis for seeking the dismissal of entire categories of civil cases challenging the legality of the Administration’s conduct in the war on terror, which they say represents a marked change from past practice, and a significant divergence from the nature of the privilege laid out by the Supreme Court more than 50 years ago in United States v. Reynolds. This approach by the Administration, the authors argue, coupled with deference by the courts and a lack of guidance from Congress, has aggregated power in the executive branch, diminished the role of the judicial and legislative branches, and blocked access to the courts by persons who have serious and legitimate grievances against the government.

Frost and Florence explain that they recognize the serious national security issues implicated in the issues they discuss, but conclude that “there is no need to choose between full disclose of state secrets on the one hand or immediate dismissal of all pending litigation challenging [secret government] programs on the other. A middle ground exists that can accommodate both interests.” To support their conclusion, the authors lay out proposed steps that they suggest be taken by all three branches of government to balance these important interests, restore limits on the use of the privilege as envisioned by the Supreme Court, and engage the executive, judicial, and legislative branches in their proper roles in shaping and using the privilege.

Please click here for electronic versions of all the transition papers.