The State Secrets Privilege

In 1948 a B-29 bomber testing secret equipment crashed near Waycross, Georgia, killing civilian engineers aboard. Their widows sued, and the Air Force refused to produce the accident report, saying it would reveal military secrets. In United States v. Reynolds, decided March 9, 1953, the Supreme Court recognized the state secrets privilege, holding that courts should accept a formal claim by the head of a department when there is a reasonable danger that evidence would expose military matters. When the report was declassified in 2000, it showed no secrets but evidence of negligence, and the families' later effort to reopen the case failed.

The privilege can remove specific evidence from a case or, if the very subject of the suit is secret, require dismissal, building on an 1876 decision barring suits over secret spy contracts. The government has invoked it to end lawsuits over the CIA's rendition and interrogation program, warrantless surveillance after 9/11, and watchlisting. A 2009 Justice Department policy requires the Attorney General's personal approval. In 2022 the Supreme Court upheld its use to block testimony about a CIA site abroad in United States v. Zubaydah and held in FBI v. Fazaga that the foreign intelligence surveillance law does not displace it. In 2025 the Justice Department invoked it to withhold details of deportation flights in a dispute over compliance with a court order.

Supporters say the privilege protects intelligence sources, military technology, and diplomatic relations that could be compromised in open court, and that judges are poorly placed to weigh those risks. Critics, including civil liberties groups and some judges, say it lets the government escape accountability for abuses such as torture by ending cases before they are heard, and that courts defer too readily. Bills to require independent judicial review of the underlying evidence have been introduced since 2008 but have not passed.