Beginning with the Supreme Court's decision in United States v. Reynolds (1953), individuals seeking relief in court have been met by executive branch claims that litigation would threaten the disclosure of information damaging to national security. If federal judges defer to those assertions, the plaintiff's case cannot move forward, either to receive documents (discovery) or to put questions to executive officials (interrogatories). As this chapter explains, the Court in 1953 was misled by the executive branch regarding the contents of the disputed document: The accident report on a B-29 crash contained no state secrets. By successfully invoking the state secrets privilege, the executive branch is able to stop litigation in its tracks, even when plaintiffs allege serious illegal and unconstitutional actions by the government. Invocation of state secrets can also be a tool to camouflage government tactics in the “War on Terror.”

Similarly, when individuals seek documents under the Freedom of Information Act (FOIA), the executive branch is entitled under law to claim a number of exemptions, including the domain of national security. Because some federal judges concluded that they could not look at documents that the government had designated as protected for reasons of national security, Congress specifically amended FOIA in 1974 to authorize judges to examine classified and confidential documents within their chambers. Nonetheless, many judges continue to trust agency affidavits and declarations that describe the documents instead of looking at the documents themselves.