The State Secrets Archives is a joint project of the Center on National Security and the Law, and Georgetown Law Professor Laura K. Donohue. Professor Donohue saw a gap in current understanding of the state secrets privilege, which was based only on published judicial opinions. Professor Donohue sought to elucidate how the state secrets privilege was being used by the government and private actors, and how the judiciary was handling the litigation. Her research focused not just on published opinions, but on legal dockets, pleadings, motions, briefs, memoranda opinions, and unpublished judicial decisions to uncover hundreds of previously undiscussed cases. In December 2010 she published her findings, the Long Shadow of State Secrets Pennsylvania Law Review. Based on the documents that comprised Professor Donohue's research, the Center on National Security and the Law partnered with Professor Donohue to create the State Secrets Archives.
The state secrets privilege allows the executive branch to withhold documents from judicial proceedings where national security may be harmed by their release. Where such documents prove central to the parties' ability to litigate the case, courts may dismiss the suits altogether.
Over the past decade, use of this privilege has captured academic and public attention, as the Executive Branch has responded to lawsuits alleging a range of constitutional and human rights violations by refusing to disclose information during discovery and, in some cases, requesting dismissal of suits on national security grounds.
More than one hundred and twenty law review articles have followed. Prominent media outlets have become outspoken in their criticism of the state secrets privilege. In both the Senate and the House, new bills have sought to codify what has previously been a common law doctrine. And in September 2009 the Attorney General introduced new procedures for review and created a State Secrets Review Committee.
Despite the sudden attention paid to the state secrets privilege, however, little is known about how it actually works. The research on which much of the discussion is based narrowly focuses on published judicial opinions in which the U.S. government has asserted the privilege and the courts have ruled on in. Myriad concerns follow.
First and foremost, such analyses tell very little about how the Executive Branch actually uses the privilege, i.e., who invokes it, under what circumstances it is invoked (or not invoked), how frequently it has been threatened, or asserted, and to what end. Put simply, there is a logical disconnect, however, between looking at how courts in their final, published opinions rule on state secrets, and drawing conclusions about the Executive Branch.
Second, the narrow focus on the outcome of published cases sheds little light on how the doctrine operates: how it influences the course of litigation, the range of cases in which it is used, or how parties respond such as cases where discovery is limited or suits are dropped because of the threatened or actual invocation of state secrets.
Third, current scholarship provides a truncated view of how the courts deal with assertion of the privilege: omitted are the many cases where the court sidesteps the question altogether, or issues memoranda or orders at an early stage in the litigation dispensing of state secrets questions. Absent too are unreported and/or unpublished opinions (which constitute approximately 80 percent of the appellate courts' caseload), as well as sealed memoranda and opinions. The lack of baseline analysis makes it difficult to conclude how the judiciary treats the privilege, as well as what variation marks the Circuits.
Through the State Secrets Archives, Professor Donohue and the Center on National Security and the Law hope to overcome some of these shortcomings in the current state secrets privilege research.