The State Secrets Privilege: Overuse Causing Unintended Consequences

This Note focuses on the Bush Administration’s attempt to dismiss all cases concerning the Extraordinary Rendition program and the National Security Agency’s warrantless wiretapping program by asserting the state secrets privilege. This Note argues that the Bush Administration has been unsuccessful in keeping information regarding these two programs secret and has instead drawn more attention to these two programs by its refusal to cooperate with the plaintiffs in these cases. If future administrations wish to better protect state secrets, the privilege should be asserted less often, should only be used to block some discovery, and the use of special measures and procedures should be employed.