The Obama administration argued in a Supreme Court filing last month that the "state secrets privilege" is rooted in the constitution, The New York Times reported. Writer Adam Liptak also points out that the history of the privilege shows how "problematic" it can be, because the case that established the privilege turned out years later to have hidden proof of negligence, not national security secrets.
The assertion is a reinforcement of Bush administration views on the privilege and comes as a bit of a surprise because the privilege is not at issue in the case, according to The Times. The privilege allows the government to dispose of lawsuits that might put national security at risk.
The brief was filed in an employment dispute case in which one of the parties is asserting an attorney-client privilege. The question in front of the court is whether an appeal of a discovery order of material claimed to be covered by attorney-client privilege can be immediate or whether it must wait until the conclusion of the proceedings. The Obama administration argues at the end of its friend-of-the-court brief that such orders which implicate the state secrets privilege should be able to be appealed immediately.
The distinction between a constitutionally based state secrets privilege and one rooted in common law is important to the administration because one that is based on the Constitution could be immediately appealed, while one that is based on common law could not.
The assertion has caused concern among liberals, The Times reported, because Obama had said during the election that he wanted to limit the use of the privilege.