What Constitutional Principles Guide Us?
Reforming the state secrets privilege is necessary to protect constitutional principles, particularly the system of checks and balances. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. A sense of fairness in the courtroom is essential in protecting the integrity and credibility of the judiciary. We all understand the need to protect state secrets and recognize an appropriate role for the state secrets privilege. The U.S. Code is filled with penalties to be applied to those who misuse classified information. That value, however, is balanced by another. We know that the executive branch regularly overclassifies documents. We have seen documents stamped secret and top secret that, once released, should never have been classified in the first place. Moreover, whichever party is in power, the e
