This Essay analyzes judicial procedures used to determine the validity of government secrecy claims under the Freedom of Information Act (FOIA), the state secrets privilege, and the Classified Information Procedures Act (CIPA). It argues that courts apply an equally deferential approach under FOIA and the state secrets privilege, often accepting government decisions to withhold relevant information. In contrast, courts employ a more searching review in criminal cases involving CIPA, thereby meaningfully deterring excessive secrecy. Under FOIA and CIPA, Congress balanced the level of judicial scrutiny given the legitimate need for government secrecy compared with the individual interests at stake—for FOIA, an individual’s generalized right to information access, and for CIPA, an individual’s right to a fair trial. The strength of the individual interests asserted by plaintiffs in state secrets cases varies between the relatively weak FOIA interest and relatively strong CIPA interest. In some cases, the individual interest is akin to the generalized, undifferentiated right of access in FOIA, such as suits broadly challenging unlawful government practices on behalf of the public. However, in some cases, the interests at issue are nearly as weighty as the right to evidence and a fair trial protected by CIPA, such as individuals challenging their torture by executive officials. The strength of the individual interests asserted by plaintiffs in state secrets cases varies between the relatively weak FOIA interest and relatively strong CIPA interest. Where the interest is generalized, courts should be as deferential as they are in FOIA cases. But where the interest implicates fundamental liberties, courts should conduct a searching review like that mandated in CIPA. This ensures that the Executive Branch is meaningfully deterred from abusing its ability to withhold information and shifts the cost of secrecy back onto the government.
Author
J.D. Candidate, Northwestern Pritzker School of Law, 2024; B.S., Georgetown University, 2019. I am grateful to Professor Heidi Kitrosser for her guidance and her fascinating course on Government Secrecy that provided me with the opportunity to write this Essay. I am indebted to the Northwestern University Law Review Online team for their careful editing and helpful suggestions.
Copyright 2024 by Ryan O’Sullivan
Cite as: Ryan O’Sullivan, Balancing Judicial Deference Under the State Secrets Privilege: A Comparative Statutory Approach, 119 Nw. U. L. Rev. Online 105 (2024). https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1343&context=nulr_online.