The Supreme Court granted certiorari earlier this week in two cases where the “state secret” privilege is an issue. This may not lead to a clear ruling on the merits or on the scope of that privilege, but that question is now on the table.
The way I think about this is that there are a few ultimate weapons in constitutional law (cue the Death Star music). One is the suspension of habeas corpus, another is the declaration that a state lacks a republican form of government, and a third is the state secret privilege. In each instance, the power is awesome, rarely exercised, and not reviewable by courts.
What connects these three examples? One thought is that they all involve topics where courts are ill-suited to judge whether the power should be exercised. That could be because there is no useful doctrinal test available, because domestic or national security is involved, or both. Another thought, though, is that the key point is that these powers are used only in terrible emergencies. Because they are rarely invoked, we are OK with making them political questions.
What happens, however, is they start getting used more often? For example, suppose folks in Congress want more regulation of the states and don’t like the Court’s federalism jurisprudence. Some smarty-pants says, “Hey, let’s start using the Guarantee Clause to get that done. After all, the Court can’t second-guess us.” If that occurred with regularity, you can bet that the Court would start reviewing those actions and “normalizing” that extraordinary power.
This is the problem with the way the state secret privilege (or defense) is being used. It’s become more common — too common to be beyond the reach of the courts anymore.
UPDATE: Check out this post at Lawfare, which gives a more thorough explanation than I did. I should have said that the state secret privilege is, for all intents and purposes, a political question.