President: Difference between revisions

The [[state secrets privilege]] allows the president and the executive branch to withhold information or documents from [[Discovery (law)|discovery]] in legal proceedings if such release would harm [[national security]]. Precedent for the privilege arose early in the 19th century when [[Thomas Jefferson]] refused to release military documents in the [[treason]] trial of [[Aaron Burr]] and again in ''[[Totten v. United States]]'' {{ussc|92|105|1876}}, when the Supreme Court dismissed a case brought by a former Union spy.<ref>{{cite case |url=https://caselaw.findlaw.com/us-9th-circuit/1537579.html |title=Mohamed v. Jeppesen Dataplan |chapter=Part III |via=FindLaw |access-date=November 29, 2010}}</ref> However, the privilege was not formally recognized by the U.S. Supreme Court until ''[[United States v. Reynolds]]'' {{ussc|345|1|1953}}, where it was held to be a [[common law]] [[Evidence (law)|evidentiary]] privilege.<ref name="ACS">{{Cite web |url=https://www.acslaw.org/issue_brief/briefs-2007-2011/reforming-the-state-secrets-privilege/ |title=Reforming the State Secrets Privilege |last1=Frost |first1=Amanda |last2=Florence |first2=Justin |year=2009 |publisher=[[American Constitution Society]] |access-date=November 9, 2017}}</ref> Before the [[September 11 attacks]], use of the privilege had been rare, but increasing in frequency.<ref>{{Cite journal |last1=Weaver |first1=William G. |last2=Pallitto |first2=Robert M. |year=2005 |title=State Secrets and Executive Power |journal=[[Political Science Quarterly]] |volume=120 |issue=1 |pages=85–112 |doi=10.1002/j.1538-165x.2005.tb00539.x |quote=Use of the state secrets privilege in courts has grown significantly over the last twenty-five years. In the twenty-three years between the decision in Reynolds [1953] and the election of Jimmy Carter, in 1976, there were four reported cases in which the government invoked the privilege. Between 1977 and 2001, there were a total of fifty-one reported cases in which courts ruled on invocation of the privilege. Because reported cases represent only a fraction of the total cases in which the privilege is invoked or implicated, it is unclear precisely how dramatically the use of the privilege has grown. But the increase in reported cases is indicative of greater willingness to assert the privilege than in the past.}}</ref> Since 2001, the government has asserted the privilege in more cases and at earlier stages of the litigation, thus in some instances causing dismissal of the suits before reaching the merits of the claims, as in the [[United States Court of Appeals for the Ninth Circuit|Ninth Circuit]]'s ruling in ''[[Mohamed v. Jeppesen Dataplan, Inc.]]''<ref name="ACS" /><ref>{{Cite news |last=Savage |first=Charlie |url=https://www.nytimes.com/2010/09/09/us/09secrets.html |title=Court Dismisses a Case Asserting Torture by C.I.A. |date=September 8, 2010 |work=The New York Times |access-date=October 8, 2010}}</ref><ref>{{Cite news |last=Finn |first=Peter |url=https://www.washingtonpost.com/wp-dyn/content/article/2010/09/08/AR2010090807334.html |title=Suit dismissed against firm in CIA rendition case |date=September 9, 2010 |newspaper=[[The Washington Post]] |access-date=October 8, 2010}}</ref> Critics of the privilege claim its use has become a tool for the government to cover up illegal or embarrassing government actions.<ref>{{Cite web |url=http://www.salon.com/news/opinion/glenn_greenwald/2009/02/10/obama |title=The 180-degree reversal of Obama's State Secrets position |last=Glenn Greenwald |author-link=Glenn Greenwald |date=February 10, 2009 |website=Salon |access-date=October 8, 2010}}</ref><ref>{{Cite web |url=https://www.aclu.org/national-security/background-state-secrets-privilege |title=Background on the State Secrets Privilege |date=January 31, 2007 |publisher=[[American Civil Liberties Union]] |access-date=October 8, 2010}}</ref>