What recourse is available to those individuals whose injury resulted from government policy related to national security matters?

What recourse is available to those individuals whose injury resulted from government policy related to national security matters?
A state secret or executive privilege is often claimed in the interest of national security, thereby foreclosing any disclosure in civil or criminal cases. What recourse is available to those individuals whose injury resulted from government policy related to national security matters? What, if any, additional recourses should be available?

The State secrets privilege is a common-law privilege that allows the head of an executive department to refuse to produce evidence in a court case. The reason is that the evidence that can be presented is secret information and that it might harm the foreign relation interests or the national security if disclosed (Morgan, 2018). When the State Secrets Privilege is involved, the government must submit an affidavit claiming that any of the court proceedings is likely to risk the disclosure of secrets that threaten the national security and then ask the court to dismiss the suit the said grounds. It can also foreclose any exposure in criminal or civil cases. This law privilege originated in England, where the law seems to be allowing the queen or the king the “Crown Privilege” that grants the monarch the absolute right to refuse to share the information with the courts or the country’s parliament. It was the Supreme Court of the United States who borrowed the state secrets privilege from the Duncan standard at the time of the Cold War (Venue, 2017). The court did so without discussing the differences between balances and checks and England’s system where the parliament is all-powerful.

Suppose an individual is involved in any illegal activity. It violates the principle of separation of the powers for allowing the individual to control what is admitted into the evidence during the trial adjudicating the same action. By refusing to accept evidence of these activity types unless it is officially acknowledged by the party interested in excluding it, Duncan Halkin’s rule allows the individual to undue control indirectly. It is a program that is widely believed to be violating the federal statute as well as the Bill of Rights (Trenga, 2018). Given the current state of law, there is individual recourse available to those whose injury resulted from the government policy related to national security matters. It is to mention that recourse is the right of a holder to recover against any prior endorser who is secondarily liable. The individual who is harmed or affected by government policy related to national security would be given all the necessary help in both financial and physical terms that the individual would need to overcome the situation. The state secrets privilege undermines the idea of an independent judiciary. It contradicts the main idea of the judicial review that is independent to judges that make an independent evaluation of all the related facts and, at the same time, essentially allow the executive branch to dictate the federal
courts about the cases they can and cannot hear.
It is important to remember that the state secrets privilege could be overturned at any point in time by the Supreme Court or Congress. Any push for ending this relic’s usage must begin with educating the other people regarding the Bush administration’s abuse of the state secrets privilege. The defenders of the state secrets privilege seem to be justifying the same with “greater good” arguments like the injustice in the individual case is outweighed by the greater good of protecting the national security. The government compensates any harm to the individual in saving national security by providing them with monetary help in most cases (Dwyer, 2014). It is also seen that some members of the individual’s family are provided with job opportunities under the government sector as an act of compensation. However, this argument ignores another important “greater good” idea: the greater good is served using denying the individual trump cars, which would allow it to hide easily and cover up the abuses of power done to them.
It is State Secrets Privilege that enables the federal government to resist the court-ordered disclosure of the details and information at the time of litigation if there is reasonable danger or chances that such exposure would negatively influence the national security of the United States. Given the current state of the law in the country, compensations are made to the individuals whose injury is resulted from the government policy about the matters of national security. However, there needs to be additional recourses like national respect that should be given to the individual or his/her family and free education for their current and next generations.

References

Morgan, L. (2018). (Re) conceptualizing state secrecy. N. Ir. Legal Q., 69, 59.

Trenga, A. J. (2018). What Judges Say and Do in Deciding National Security Cases: The Example of the State Secrets Privilege. Harv. Nat’l Sec. J., 9, 1.

Venie, T. (2017). The State Secrets Privilege and the War on Terror: An Annotated Bibliography. Legal Reference Services Quarterly, 36(1), 34-50.

Then do this one separately—————-//

While there are many privileges that exist regarding communications between private parties like “attorney-client, physician-patient, priest-pennant, and husband-wife” as well as some extensions toward “social worker-client…parent-child…counselor-victim” (Dwyer, 2015, p.197) In these instances, there is a form of confidentiality that is given and respected in the relationship. While these relationships are usually private in their matters, the only instance of a person of authority being mandated to share the privileged information is when there is imminent threat to their client or to someone else. There are further types of privileges like the law enforcement privilege, executive privilege, and national security privilege. Law enforcement privilege is when an agency or office is given the privilege to not disclose information that would hinder or obstruct their abilities to continue an investigation. Both executive privilege and national security fall in line with the privilege that law enforcement is able to experience.

Regarding national security privilege, the government has the ability to not disclose, or keep from its constituents information that may hinder the status of national security or provide for vulnerabilities to attack or infiltration. In the case of United States v. Reynolds, the idea of national security privilege was solidified. In this case, it set a precedent or formal processes for protocols to invoke privilege, standards for harm to be able to invoke privilege, and the requirement to engage the Attorney General as well as the state secrets review committee. This court case recognized the necessity for privilege, yet also that judicial review be the checks and balances system (Dwyer, 2015, p.210-211). In summary of that privilege, “the government’s use of the state secrets privilege in recent cases arising out of the War on Terror [is] a means of forestalling litigation, withholding information, and preventing governmental liability, and thus, chipping away at structural and theoretical constitutional protections-protections designed to defend individual rights and liberties and to prevent executive overreaching” (Fichera, 2008, p. 627).

As it pertains to recourses regarding injury resulted from the national security privilege being enacted, there are certain immunities present within this construct, but also standards of operation that outline what can and cannot happen and what prevents that injury to occur. Immunities such as absolute immunity and qualified immunity are now present. Absolute immunity relates to judges and prosecutors and affords them protection due to their proximity to the law and the representation of legal statutes. Qualified immunity relates to officers and those acting to enforce the laws. Qualified immunity only protects law enforcers when their actions and enforcement are in good faith and under the color of law and while the actions being taken are just and in accordance with policies and laws. The only time in which injury results in recourse being taken by individuals that may feel their rights have been violated is to file civil suit against the organization or authority to which the violation occurred. Though, civil suit may not be able to be followed through due to the immunities provided under the previously mention cases.

Dwyer, T. P. (2015). Legal issues in homeland security: U.S. Supreme Court cases, commentary, and questions. Flushing, NY: Looseleaf Law Publications.

Fichera, S. A. (2008). Compromising Liberty for National Security: The Need To Rein in the Executive’s Use of the State-Secrets Privilege in Post-September 11 Litigation. University of Miami Law Review, 62(2), 625–650.