State Secrets Privilege: The Government’s Common Law National Security Privilege

Throughout American history, the federal government has argued that certain information should remain classified to protect national security. In judicial proceedings, the government has often been able to protect classified information from being disclosed or becoming public by invoking the state secrets privilege, which evolved under the common law as a basis for the government to protect classified information. The government has successfully asserted the state secrets privilege to prevent the disclosure of (i) information regarding a contract made between President Lincoln and a secret agent during the Civil War, (ii) an accident incident report involving the crash of a flight taken for the purpose of testing secret electronic equipment, and (iii) information that could confirm or deny the existence of a CIA detention site in Poland.

The state secrets privilege is rooted in the 1876 decision of Totten v. United States, where the Supreme Court developed the Totten bar, which precluded judicial review in cases involving matters which the law regards as confidential. Almost a century after the Totten bar was introduced, the Supreme Court developed the modern state secrets privilege in United States v. Reynolds (1953) to protect the government’s national security secrets by allowing the executive to withhold military or state secrets during the judicial discovery process. More recently, in 2022, the Supreme Court in United States v. Zubaydah recognized that, in cases involving state secrets, courts may allow the government “to prevent disclosure of information when that disclosure would harm national security interests.”

In March 2025, the government invoked the state secrets privilege in J.G.G. v. Trump in response to a minute order requiring the government to disclose details regarding two flights that left U.S. airspace to transfer alleged alien members of the designated foreign terrorist organization Tren de Aragua to a foreign nation. The government stated that the evidentiary privilege “forecloses further demands for details that have no place in this matter.” The government argued that the information sought by the court was “subject to state secrets privilege because disclosure would pose reasonable danger to national security and foreign affairs.”

Among other arguments, the government stated that the disclosure of the information requested by the court could cause the one or more foreign countries that were involved “to face internal or international pressure, making that foreign State and other foreign States less likely to work cooperatively with the United States in the future . . . .” The government explained that disclosing such information would be a breach of trust “on which our foreign relationships are based,” impairing the United States’ foreign relations and diplomatic capabilities.

According to the Supreme Court in Reynolds, to assert the state secrets privilege, “the head of the [government] department which has control over the matter” at issue must personally review the information and “make a formal claim of privilege.” In practice, this is typically done through an affidavit from the head of the agency or department, who must personally review the files in question and state the reasons why disclosure of the information would be harmful to the government’s interests. In the case of J.G.G., for example, the Secretary of State undertook this task and submitted the requisite affidavit in support of the state secrets privilege.

In terms of the government’s burden, the Supreme Court has instructed that the state secrets privilege “is not to be lightly invoked.” In Molerio v. FBI (1984), the D.C. Circuit explained that the privilege against the disclosure of information that would adversely affect national security covers information that would result in “impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments.”

According to Reynolds, the court, in turn, “must determine whether the circumstances are appropriate for the claim of privilege . . . .” “[T]he court must be satisfied from all the evidence and circumstances, and ‘from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’” Hence, determining the applicability of the state secrets privilege is a highly fact-sensitive inquiry.

If the government has offered a valid reason for invoking the privilege, “the showing of necessity” by the party seeking disclosure of the ostensibly privileged information will “determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.” “[W]here necessity is dubious, a formal claim of privilege,” demonstrating “a reasonable possibility” of harm to national security, “will have to prevail.” Courts should be reluctant to intrude upon the authority of the executive in military and national security affairs.

In Totten, Reynolds, and Zubaydah, the government succeeded in invoking the state secrets privilege by demonstrating that the disclosure of state secrets posed a reasonable possibility of harm to national security. In J.G.G. v. Trump, the government invoked the state secrets privilege and presented facts to establish that the disclosure of the information requested by the court’s minute order would pose a reasonable danger to national security and foreign affairs. The court in J.G.G. has yet to rule on the matter. In cases involving the state secrets privilege, courts must balance the requesting party’s right to government transparency with the government’s need to protect matters of national security from disclosure. Ultimately, the privilege protects the authority of the executive in military and national security affairs to prevent disclosure of information when that disclosure would harm national security interests.