This post is the twelfth in a series concerning the state secrets privilege, and most likely the last from me (Bill and Amanda may follow with their own concluding posts). Links to prior posts appear below.
I'll conclude with response to Bill's most recent post, including an effort at the end to offer an alternative approach to the proposals advanced by Bill and Jeremy with respect to the most difficult aspect of the privilege: determining what impact disclosure of protected information might actually have.
* Extending the criminal-law approach to the civil context: Bill notes his preference for requiring the government to bear the cost of invoking the privilege, and suggests that this is consistent with the lower court approach in Reynolds itself. I'm not sure that's precisely what the Third Circuit held, however. Yes, the Third Circuit did affirm the district judge's decision to sanction the government by finding key facts against it. But the sanction was based on the government's refusal to produce the report for an ex parte, in camera inspection by the district judge for purposes of determining whether the privilege applied to it; it was not a sanction that followed after a determination by the district judge that the report was in fact privileged. This is a very important distinction, it seems to me. I agree entirely with Bill and others that district judges must have the authority to review such documents to ensure that they do in fact contain purportedly sensitive information, and the costs of a refusal to permit such a threshold inquiry should indeed be imposed on the government. It is quite different, however, to say that the government should also bear the costs if the judge inspects a document and concludes that it does contain information to which the privilege applies. And that leads to the next point....
* Frivolous suits - Bill notes that I may be overconcerned about the prospect of frivolous suits. I would just add that I'm not concerned only with frivolous suits, since there is significant conceptual space for suits that are not frivolous but which nonetheless should not prevail on the merits.
* Whose privilege is it? I think one of the most interesting aspects of Bill's work is to draw attention to the question of whether the privilege is best conceived of as only an executive branch privilege, or if instead it should be seen more broadly as a federal government privilege. This distinction matters a great deal, of course, when it comes to questions of congressional oversight. I'm not sure that it impacts the question of how the privilege should play out in civil litigation brought against the government by private plaintiffs, however.
* Consequences of a Functionalist Account - Another very interesting aspect of Bill's post is his endorsement of a functionalist perspective on the privilege, rooted in broad skepticism about the government's motives for asserting the privilege in most if not all cases (for him, that perspective requires a doctrinal cashout in which the burden of proof on the government should be heightened considerably). A functionalist response that seems persuasive to me emphasizes the relative competencies of the judge and executive officials with respect to assessments of the likely impact of any given disclosure on national security. Bill would respond, I think, by noting that in actual practice there are few or no instances of a judge actually rejecting an assertion of the privilege on the ground that the disclosure would not in fact sufficiently harm national security, and thus that the status quo in practice treats the executive's assertion as conclusive (contrary to the rhetoric of privilege analysis, which as noted above assume's that the judge really does provide some form of check). This raises a question in my mind - is it true that judges function as rubber stamps at the merits stage? I would be very curious to know of examples in which the privilege was denied on the merits. Ultimately, I would agree with Bill that there must be at least some realistic prospect for the judge to reject the privilege on the merits (lest the entire process be a charade), but I think we need to remain mindful of the competency concerns noted above. Which leads to the next point....
* Independent advisors to assist the judge with the merits assessment - Jeremy has offered the SLC-screening concept as a means of addressing competency concerns (see also the essay by Meredith Fuchs and Gregg Webb here), but I remain concerned about the practicalities involved when it comes to finding the right persons to perform this function (not because there aren't lots of folks out there with the relevant experience and clearances, but because those folks presumably no longer have access to the current classified information to provide the full context within which such judgments ought to be made) I don't want to reject out of hand the notion of finding creative ways to overcome competency objections, however, so let me throw out a suggestion in the spirit of open dialogue and brainstorming(with apologies to anyone who already has suggested this):
Certification to SSCI/HPSCI
What if the merits question (i.e., the question of whether and to what extent disclosure would harm national security) were to be certified by the judge to SSCI or HPSCI (or both) for advice or input, perhaps subject to a super-majority requirement in order to advise rejection of the privilege? From a separation-of-powers perspective, is there any variation of such a proposal that could pass muster? From a policy perspective, does any variation of this approach cure the competency concern while preserving secrecy sufficiently?
Let me stop there, and encourage comments in particular on this last suggestion. Let me also thank Bill, Amanda, Jeremy, Ben, and others for their participation in this dialogue. I hope you've all found it useful in shedding light on this topic, if only by emphatically distinguishing the issues that arise at distinct stages of the privilege-assertion process (i.e., (i) determining whether the assertedly-protected information actually is present in the media in question so as to implicate the privilege; (ii) if so, determining whether disclosure of the information poses a sufficient risk to national security to warrant application of the privilege; and (iii) if so, what consequences should follow in terms of discovery, sanction, or dismissal). If you have found it useful, by all means please forward the links to anyone else you think might be interested.
Earlier posts in this series:
5. Chesney: Are There Suits that Are Dismissed Today that Would Have Survived a State Secrets Objection in the Past? (note the comments on this one are particularly extensive)