Judging Secrets: The Role of the Courts

Federal courts could, and should, play a more effective role in curtailing unnecessary government secrecy, argues Meredith Fuchs, general counsel at the National Security Archive, in a splendid new law review article.

“All too often, courts easily accept the argument that the executive needs unquestioning adherence to its judgments and that the court is not competent to assess those judgments in the realm of national security.”

“Yet judges have stemmed executive overreaching in other contexts involving national security claims. Judges have discretionary tools — such as the Vaughn Index, in camera review, and special master — available to help them do the same in the secrecy context,” she wrote.

Her article provides an updated introduction to the secrecy system, a critique of secrecy policy, and a survey of recent judicial actions.

See “Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy” by Meredith Fuchs, Administrative Law Review, Winter 2006.

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