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• Sunday, July 15, 2007 12:35 PM

  A "peer review"

  Here's an amicus brief (for the appeal) filed by William G. Weaver and Robert M. Pallitto in support of Judge Walker's rejection of the administration's secrecy assertion in Hepting v. AT&T. Chesney had also submitted an amicus brief, which includes his state secrets paper as an addendum (http://www.eff.org/legal/cases/att/amicus_brief_chesney_03162007.pdf)

  Small excerpt:

  The tendency on the part of some to cut the privilege from its moorings is evident in the Chesney Brief urging reversal of the district court’s ruling on the privilege in the instant case. This brief, similar to positions often taken by the government, mythologizes and expands the power of Reynolds beyond its pragmatic banks....
  
  

  In sum, the analysis proposed by the Chesney Brief misstates existing precedent and conflates distinct legal doctrines. There is no reason to replace or supplement the trial court’s analysis of state secrets precedent with professor Chesney’s analyses.

  and

  The Addendum to the Chesney Brief includes a problematic table of cases purporting to be “Published Opinions Adjudicating Assertions of the State Secrets Privilege after Reynolds, 1954-2006.”

  Four of the ten cases included in the table before 1975 are not state secrets cases at all. United States v. Ahmad, 499 F. 2d 851 (3rd Cir. 1974); Black v. Sheraton, 371 F. Supp. 97 (D.D.C. 1974); Elson v. Bowen, 83 Nev. 515 (1967); Petrowicz v. Holland, 142 F. Supp. 369 (E.D. Pa. 1956). In none of those four cases did the government assert the privilege or apparently even bring up the privilege, and it can hardly be said that the courts involved “adjudicated” any matter concerning the privilege.

  http://www.eff.org/legal/cases/att/weaveramicus.pdf

  —EJ Read EJ's other letters
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