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Memo Regarding Varieties of Executive Privilege

Aziz Huq discusses the different types of executive privilege in use today. Specifically, “presidential communications privilege,” the “deliberative process privilege,” attorney-client privilege, and claims of secrecy on grounds of national security are considered.

Published: January 31, 2007

Aziz Huq reviews the varieties of executive privilege – the presidential communication privilege, deliberative process privilege, attorney-client privilege, and national-security related privilege – and their historical applications.  He demonstrates that each privilege can be overcome if there is substantial reason, and, despite recent handling of national-security related issues, they, too, are subject to congressional oversight.  The memo attests to the danger in a lack of congressional pressure on privilege claims relating to national security.

Mr. Huq is counsel in several cases concerning detention and national security policy, including Omar v. Geren and Munaf v. Geren, challenges to US citizen’s detention in Iraq.  He has advised and spoken before legislators on issues related to the Separation of Powers, excessive secrecy, and illegal detention.  His book with Fritz Schwarz, Unchecked and Unbalanced: Presidential Power In A Time of Terror (New Press), was published in 2007, and will be reissued in paperback in spring 2008.  He is a frequent contributor to The Nation, the American Prospect, the New York Law Journal and Huffington Post.  His articles have also appeared in the Washington Post, the New Republic, Democracy Journal, TomPaine, and Colorlines.