Legal Definitions - national-security privilege

The national-security privilege is a legal principle that allows the United States government to prevent the disclosure of information in a lawsuit if revealing that information would pose a significant risk to national security. This privilege is typically asserted by a high-ranking government official who formally declares that specific information is classified and its public disclosure would harm national defense or foreign relations. When successfully invoked, the court must balance the litigant's need for the information against the government's interest in protecting national security, often resulting in the information being withheld from the public and even from the court itself.

Here are some examples illustrating the national-security privilege:

• Example 1: Lawsuit over a Covert Operation

  Imagine a civil lawsuit brought against the government by a group of citizens who claim they were harmed by a covert intelligence operation conducted overseas. During the discovery phase, the plaintiffs request documents detailing the specific methods, personnel, and locations involved in the operation. The Director of National Intelligence could invoke the national-security privilege, asserting that revealing such details would expose sensitive intelligence sources and methods, compromise ongoing operations, and endanger personnel, thereby posing a grave risk to national security. The court would then likely prevent the disclosure of these specific classified details, even if it means the plaintiffs have less information for their case.

• Example 2: Whistleblower Case Involving Classified Technology

  Consider a former government contractor who sues the Department of Defense, alleging wrongful termination after reporting what they believed to be waste and fraud related to a highly classified weapons system. To prove their case, the contractor seeks to introduce evidence describing the technical specifications and operational capabilities of this secret system. The Secretary of Defense could assert the national-security privilege, arguing that public disclosure of the weapon system's design and functionality would provide critical intelligence to adversaries, undermining national defense. In this scenario, the court would likely uphold the privilege, preventing the contractor from using the classified technical details as evidence.

• Example 3: Freedom of Information Act (FOIA) Request for Diplomatic Communications

  A journalist files a Freedom of Information Act (FOIA) request seeking access to highly sensitive diplomatic communications between U.S. officials and foreign leaders concerning a volatile international crisis. The journalist believes these communications would shed light on the government's decision-making process. The Secretary of State could invoke the national-security privilege (which often overlaps with FOIA exemptions for classified information), arguing that releasing these specific communications would severely damage ongoing diplomatic efforts, compromise future negotiations, and potentially destabilize international relations. The court would likely agree that the potential harm to foreign policy and national security outweighs the public interest in immediate disclosure.