Before the Bush administration, the ’state secrets’ doctrine was used to exclude certain bits of evidence from trials if the judge agreed with the Executive Branch that damage to national security could result.
The Bush administration attempted to expand the doctrine so that whole lawsuits could be dismissed on the Executive’s motion, with the Executive as the sole arbiter of whether national security was at risk – even when the complaint was that the Executive’s conduct was illegal.
To the surprise of many, the Obama administration maintained the Bush position in pending lawsuits wherein the state secrets doctrine was at issue.
A three judge panel of the Ninth Circuit today unanimously reversed a District Court’s agreement with the Bush/Obama expansion of the state secrets doctrine – a result cheered by civil libertarians and proponents of open government.
The court’s opinion is available here.
Glenn Greenwald has detailed coverage and an interview with the plaintiff’s lead council at Salon.com.
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About the Author
U.S. Legal Blog is maintained by Bryan Lieb.
