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Read other letters about this article
It is available at the link provided in the update: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=946676#PaperDownload (click on one of the icons, e.g, Chicago, to download the pdf). Here's what Steven Aftergood of FAS said at the link provided by obijuan below:
In a useful appendix to his paper, Prof. Chesney provides a tabulation of 89 opinions in which the state secrets privilege has been asserted since 1954. But these only include published opinions, a subset of the unknown total. And for technical reasons, he excludes some cases that have been previously cited as state secrets cases but includes others that have not been.
Fundamentally, he writes, "The reality is that we simply do not know, and have no way of finding out, just how frequently the privilege may have been asserted during any particular period."
After reviewing how the government has used privilege over the years, he concludes that "the pattern of implementation of the state secrets privilege does not depart significantly from its past usage."
Yet Prof. Chesney adds that "To say that the privilege has long been with us and has long been harsh is not to say, however, that it is desirable to continue with the status quo."
He considers the feasibility of enacting reforms to limit or modify the assertion of the privilege and finds reason to conclude that such reforms may be appropriate, particularly "where the legality of government conduct is itself in issue."
