The State Secrets Privilege: An Institutional Process Approach

Alexandra B. Dakich | April 16, 2023

It is no secret that since September 11, 2001, the Executive Branch has acted at variance with laws otherwise restraining its conduct under the guise of national security. Among other doctrines that make up the new national security canon, state secrets privilege assertions have narrowed the scope of redressability for parties alleging official misconduct in national security cases. For parties such as the Muslim American community surveilled by the FBI in Orange County, California, or Abu Zubaydah, who was subjected to confirmed torture tactics by the U.S. government, success in the courts hinges on the government’s unbridled ability to assert this privilege. This trend is unsurprising given how courts evaluate national security issues, even where individual rights are at stake. Through the institutional process framework, illuminated by Professors Samuel Issacharoff and Richard Pildes, federal courts are reluctant to invalidate unilateral executive action absent a congressional statute addressing the challenged national security conduct.

Scholarship on the institutional process framework to date has primarily examined the judiciary’s role. This Note shifts the spotlight to Congress’s role in the institutional process framework. Congress should embrace its role in fostering interbranch institutional cooperation by speaking directly to courts regarding national security issues. Specific to the state secrets privilege in its post-Zubaydah and Fazaga form, Congress must provide an interbranch procedural framework by which courts can assess assertions of the privilege. As the best institution to incorporate valuable considerations about the purpose and flaws of the privilege, Congress can empower Article III courts to meaningfully review state secrets privilege assertions and restore executive accountability.