State Secrets Privilege: Origins, Parameters, and Application

Abstract

On January 25, 2007, for the first time in Taiwan`s history, President Chen Shui-bian filed a request for a constitutional interpretation and invoked the state secrets privilege in an attempt to shield the first lady from a corruption trial. The interpretation sparked a national uproar and many in the media voiced criticism of the president. The controversy centered on the assertion by the grand justices that the president enjoys ”special privilege over state secrets,” and that he alone can decide what is a state secret. Some argued that this is a ”super umbrella” of protection tailored for the president, which may lead to the creation of a dictatorship and allow a ruler to cheat the people in the name of ”protecting national secrets.”The state secrets privilege has been described as the ”nuclear bomb of legal tactics,” which is most often used by the executive branch in civil court cases to protect against subpoenas, discovery motions, or other judicial requests of information. Based the application of this privilege in the United States, we find that state secrets privilege is increasingly subject to abuse to hide criminal activity, and to thwart legal requests for information and close off investigations. We argue that the state secrets privilege should be treated as qualified, not absolute. Otherwise there is no adversary process in court and no exercise of judicial independence over available evidence. The judiciary should take steps to prevent the state secrets privilege from remaining a license for executive overreaching, and to prevent injustice from being committed in the name of secrecy.