Reams have been written on the state secrets privilege and its consequences for litigants’ rights. So too have scholars explored individuals’ rights to challenge security clearance decisions as they relate to employment. But there has never been a thorough exploration of how to resolve conflicts between the state secrets privilege and the security clearance system that arise where Article III courts seek to adjudicate complex state secrets privilege disputes. This Note seeks to fill that void by answering the question whether courts have the authority to influence security clearance decisions—or at least subsequent “need-to-know” determinations—for expert witnesses, special masters, and litigants’ counsel the courts deem necessary to assist them in adjudicating state secrets privilege assertions.
The state secrets privilege acts as an absolute bar to disclosure of privileged material. Even cases alleging horrific human and civil rights abuses like extraordinary rendition or torture are routinely dismissed when the government or its agents claim the privilege. Because of the harsh effects of the privilege, the Supreme Court set forth in its landmark 1953 case United States v. Reynolds that courts should take an active and discerning role in assessing state secrets privilege invocations: The privilege is appropriate only where a court is convinced “that there is a reasonable danger that compulsion of the evidence will expose” state secrets. And the Court warned that “abandonment of judicial control would lead to intolerable abuses.”
In the years since Reynolds, many have come to fear that misuse of the privilege has become common. Particularly since 9/11, privilege invocations have surged, and the consequences flowing from the government’s seeking outright dismissal have been harsh. And many courts have moved toward accepting vague and general arguments from the executive on when the privilege applies. But in the face of these trends, some judges have attempted to regain control. Among other innovations, these judges have sought to involve special masters, expert witnesses, and litigants’ counsel to aid in the effective adjudication of complex state secrets privilege invocations, rather than accepting the executive’s arguments out of hand.
The executive branch has resisted judicial innovation. Because virtually everything that is allegedly a state secret is also classified, the executive has stifled disclosure of disputed information to expert witness, special masters, and litigants’ counsel on the basis that they do not “need to know,” as defined by the executive orders that shape the classification and security clearance system. The same orders purport to give the executive plenary power to determine who gets to access classified information and when.
Although several courts have confronted this issue, most have dodged it. This Note seeks to provide, for the first time, a thorough framework on which judges can draw in confronting this question. It concludes that based on doctrine and precedent from the Supreme Court and elsewhere, judges have the authority necessary to influence both the security clearance process itself and subsequent “need-to-know” determinations.
* J.D. Candidate, Stanford Law School, 2018.