The court has not examined the state secrets privilege in more than 50 years.
A coalition of groups favoring greater openness in government says the Bush administration has used the state secrets privilege much more frequently than its predecessors.
At the height of Cold War tensions between the US and the former Soviet Union, US presidents used the state secrets privilege six times from 1953 to 1976, according to OpenTheGovernment.org. Since 2001, it has been used 39 times, enabling the government to unilaterally withhold documents from the court system, the group said.
The state secrets privilege arose from a 1953 Supreme Court ruling that allowed the executive branch to keep secret, even from the court, details about a military plane's fatal crash.
Three widows sued to get the accident report after their husbands died aboard a B-29 bomber, but the Air Force refused to release it claiming that the plane was on a secret mission to test new equipment.
The high court accepted the argument, but when the report was released decades later there was nothing in it about a secret mission or equipment.
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