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Read other letters about this article
I was going to point everyone in the direction of SSRN, but obijuan beat me to it. A complete list of Chesney's publications may be found here:
http://www.law.wfu.edu/x2987.xml
I glanced at the Paper, and Chesney takes on the points raised in the Weaver and Pallito paper. I was surprised by his conclusions (begins at pg. 52 [pg. 55 of the PDF file]):
(1) It's difficult to assemble a reliable list due to the difficulty in finding unpublished examples.
(2) The date when the assertion was raised, and the date of its origin are separate events -- thus, making it difficult to assess which administration was responsible for raising the privilege in the first place.
(3) Year-to-year comparisons have little value unless one assumes the government is presented with an equal number of opportunities each year to assert the privilege.
Thus, according to Chesney:
Taken together, these considerations establish that there is little point in asking whether the privilege has been asserted at an unusually high rate in any given year ... For all of these reasons discussed above, the quantitative debate is best set aside entirely on the ground that it presents a largely unanswerable question. The more significant and appropriate question is whether the state secrets privilege has expanded in recent years in substantive terms.
In other words, because it's "hard" to find unpublished opinions and assess dates the problem is completely intractable; further, just because the government has had more opportunities this year to assert the privilege means we can't compare it to previous times. However, the opportunities to assert privilege are proximately caused by the administration's own policies (e.g. implementing the NSA program) -- maybe Chesney forgot this. The difficulty in finding statistics does not make the problem impossible, it just makes Chesney's conclusion lazy.
Translated from law professor speak: reality has a well-known liberal bias.
