THE POWER TO CONCEAL: EXECUTIVE POWER AND THE STATE SECRETS PRIVILEGE

Abstract

Though conceived as a common law evidentiary privilege, for use within a trial, to protect discreet pieces of evidence in the public interest, the primary purpose of the state secrets privilege today is to conceal executive policy and activities. Following 9/11, the Bush administration began to utilize the state secrets privilege in a new way by demanding that cases, in which state secrets were allegedly involved, be dismissed before trials even began. President Obama has continued to expand the use of the privilege as broadly as his predecessor. My dissertation explores this dilemma of policy continuity. The resulting study is focused on the intersection of the institutional and personal presidency, and the embededness of secrecy within the executive branch. It finds that the institutional protections of the state secrets privilege far outweigh the personal preferences, ideology or scruples of whichever individual inhabits the Oval Office.