The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation.
"The state secrets privilege is a judicially created evidentiary privilege that allows the federal
government to resist court-ordered disclosure of information during litigation if there is a
reasonable danger that such disclosure would harm the national security of the United States.
Although the common law privilege has a long history, the Supreme Court first described the
modern analytical framework of the state secrets privilege in the 1953 case of United States v.
Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court laid out a two-step procedure to be used
when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual
personal consideration by that officer. Second, a court must independently determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect. If the privilege is appropriately
invoked, it is absolute and the disclosure of the underlying information cannot be compelled by
the court...