Last week, the Obama administration quietly filed an amicus brief with the Supreme Court that gives us a glimpse into the president’s interpretation of executive branch power.  Seemingly seeking to expand and protect this power, the administration argued that the state secrets privilege is “constitutionally rooted.” 

To claim a direct constitutional basis for the privilege stretches previous findings of the Supreme Court.  The privilege was, in fact, created by case law as a result of the Court’s decision in United States v. Reynolds (1953).  The case sought a military aircraft crash incident report as part of a personal injury lawsuit.  In 1953, the Eisenhower administration argued, with constitutional overtones, that the executive branch had the power to withhold documents in their custody from judicial review if it was in the public interest.  The court, however, found a “narrower ground for decision” refusing to rule on the constitutionality of such a privilege.

The only Supreme Court case to directly reference the constitutionality of the privilege is El Masri v. United States (2007).  In that case, the Court argued that the privilege “performed a function of constitutional significance.”  It further argued that both the Reynolds case and a 1974 case, United States v. Nixon, implied that the privilige helped secure the president’s abilities to conduct executive branch responsibilities articulated in Article II of the Constitution.

The discussion of the state secrets privilege was only recently discovered because the case for which it was filed only dealt with a technical question of the attorney-client privilege; little to do with state secrets or presidential power.

Courts certainly have not been in universal agreement that the privilege is rooted in constitutional authority as the administration suggests.  However, it is clear that such an argument questions Congress’s authority to legislate in any way that would alter the executive branch’s ability to apply the privilege.