This Article argues that the expanding use of the state secrets privilege by the executive branch impairs litigants’ right to a fair trial. The state secrets privilege allows evidence to be barred from discovery when the government asserts that disclosure of such material would threaten national security. This oftentimes leads to the suit being dismissed, leaving the litigants without recourse.
United States v. Reynolds established the formal recognition of the modern use of the state secrets privilege. The decision in Reynolds enumerated a five-factor analysis (the “Reynolds factors”) which serve as a guide for evaluating the validity of the use of the privilege. This Article explains the “Reynolds factors”—their shortcomings, improper interpretation in subsequent cases, and an analysis of potential future uses. The need for an updated procedure is highlighted by a discussion of contemporary case law and statutes, an inquiry into the acquiescence of judicial and congressional authority, and a policy argument for expanded judicial intervention.
Matters of national security, of course, must be handled with extreme sensitivity and care. But sensitivity does not mean expansive deference to the executive branch. There is not a one-size-fits-all solution when the privilege is invoked. But by limiting judicial deference through in camera review, the judiciary upholds and adheres to the constitutional need to enforce limits and encourage balance throughout the government.
The presented solutions in this Article consist of different paths that lead to the same outcome: less judicial deference via the use of in camera review.