Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to hear and decide such cases. The executive's recent invocation of the privilege raises a concern that has been largely overlooked thus far - the impact of the privilege on legislative power to assign jurisdiction to the federal courts. The U.S. Constitution grants to Congress, and not the President, near-plenary authority to craft federal jurisdiction. Furthermore, when Congress assigns federal courts to hear cases challenging the legality of executive action, it is enlisting the judiciary as its partner in policing executive conduct. The executive's recent use of the privilege disrupts that constitutional collaboration, leaving the executive potentially unchecked by any branch of government. The Essay then discusses how courts should incorporate the concern for legislative power and executive oversight into its analysis of the state secrets privilege. It concludes by suggesting that courts refuse to dismiss these cases until Congress has indicated a willingness to take back the task of executive oversight that it had delegated to the courts through the original jurisdictional grant.
Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham Law Review, 1931–1964 (2007).