The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation, Todd Garvey
Legislative Attorney, Edward C. Liu, Legislative Attorney, March 28, 2011
“The state secrets privilege arises in a wide array of cases, generally where the government is a defendant or where the government has intervened in a case between private parties to prevent the disclosure of state secrets. Recently, the privilege has been characterized by a number of high profile assertionsincluding invocation of the privilege to defend against claims arising from the governments extraordinary rendition practices, challenges to the terrorist surveillance program, and claims against various national security agencies for unlawful employment practices. The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors. The Supreme Court is currently considering a complex government contracting case that has the potential to impact the consequences of a valid privilege in cases where the assertion of the privilege acts to inhibit a partys ability to defend against an action of the federal government. This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and a selection of high-profile examples of how the privilege has been applied in practice.”
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