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date: 15 October 2019

Abstract and Keywords

This article discusses the concept of state secrets privilege which is designed to prevent private litigants from gaining access to agency documents sought in cases involving National Security Agency (NSA) surveillance, extraordinary rendition, and other intelligence programs. Before the Reynolds case, the Supreme Court recognized the state secrets privilege. Over the past half century, federal judges gave “deference” to the executive claims on sensitivity and confidentiality of agency records without ever looking at the disputed document. However in 1953, the Supreme Court was misled by the government. Since then, there has been an interest in having Congress enact legislation to assure greater independence for the federal judiciary and provide a more even playing field for private litigants.

Keywords: state secrets privilege, agency documents, National Security Agency, surveillance, extraordinary rendition, intelligence programs, confidentiality, Supreme Court

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