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Some new data on the Bush administration’s assertions of state secrets privilege

- January 30, 2008

The current administration has come in for a great deal of criticism about its assertions of state secrets privilege to block requests for disclosure of classified information. In a recent article in the George Washington Law Review, Robert Chesney runs some numbers that put these criticisms in a rather different light. (By the way, if you’re unaccustomed to reading law review articles, settle in for a long night.) Chesney shows that since the seminal Supreme Court decision (U.S. v. Reynolds in 1953), there has been a sharp rise in invocations of the privilege, but most of that upward trend occurred during the 1980s, not since 2001. From 2001 through 2006, the Bush administration invoked the privilege a total of 20 times — an average of about 3.3 times per year. By comparison, between 1991 and 2000, Bush’s immediate predecessors, the senior Bush and the putatively first Clinton, tallied an average of 2.6 such assertions per year, up from Reagan and Bush’s average of 2.3 per year between 1981 and 1990. Thus, an upward trend in recent years, but in Chesney’s judgment (and, for that matter, according to by conventional statistical criteria) not a significant one.

Cheney also emphasizes that the increase since 2001 reflects the fact that the nation has been at war for virtually all of that period, in contrast to the great majority of the previous two decades.

Critics like the Electronic Frontier Foundation (quoted in the Washington Post article where I spotted Cheney’s figures — an article whose headline doesn’t accurately reflect its contents) contend that irrespective of how often the Bush Administration has asserted the privilege, it has abused it. Others, like the former asssociate attorney general who is also quoted in the Post story, disagree with that assessment, arguing that “The privilege exists to protect national security information, and they’re using it to do that.”