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The state secrets privilege is too easy to abuse

COMMENTARY | November 17, 2006

Justice is not served when a federal court simply defers to the government’s assertion of a “state secrets privilege.” Renowned constitutional scholar Louis Fisher reviews a controversial Supreme Court decision and writes that judges should insist on seeing the evidence the government is so intent on keeping secret from the public.

By Louis Fisher

Ever since the Supreme Court in United States v. Reynolds (1953) upheld the state secrets privilege, the federal government has increasingly used its ability to bar from court any information or document the government asserts would damage national security, the national interest, or foreign policy if disclosed. But is the government doing so for legitimate reasons? Or just to protect itself from embarrassment?

That is precisely the sort of thing a federal judge should determine, rather than just taking the government’s word for it.

The government often has legitimate needs to prevent public disclosure of secret information. But there’s a big difference between public disclosure and disclosure to the court.

Allowing the executive branch to treat the privilege as an absolute bar to judicial review, as the Bush administration is attempting, would be profoundly unwise. It would tilt control over the courtroom to executive power, deny to private litigants any opportunity for justice, and eliminate a vital check on governmental abuse.

John Henry Wigmore, in his classic 1940 treatise on evidence, recognized that a state secrets privilege exists. However, when he asked who should determine the necessity for secrecy – the executive or the judiciary – he concluded it must be the court:

"Shall every subordinate in the department have access to the secret, and not the presiding officer of justice? Cannot the constitutionally coordinate body of government share the confidence? . . . The truth cannot be escaped that a Court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege . . . Both principle and policy demand that the determination of the privilege shall be for the Court."

The Reynolds Case

In 1953, the Court upheld the right of the government to withhold from three widows of civilian engineers the accident report about the B-29 crash that killed their husbands. The widows brought suit under the Federal Tort Claims Act and won in district court and the Third Circuit after those courts decided that if the government failed to surrender the report, at least to the district judge, it would lose the case. Under the Tort Claims Act, the government is liable "in the same manner" as a private individual and is entitled to no special privileges.

Without ever looking at the report, the Supreme Court sustained the government's claim. It stated: "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."

Unwilling to examine the report, the Court was in no position to know if there had been caprice or not. On its face, the Court's decision marked an abdication by the judiciary to a governmental assertion. Without the judiciary independently looking at the accident report, there was no way to determine if there was reasonable danger to national security, if the assertion of the privilege was appropriate, or that any jeopardy to national security existed.

A Discovery, 50 Years Later

In Reynolds, the Court referred to the secret equipment on the B-29: "On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission." In fact, the report was never given to the district court and there were no grounds for concluding that the report made any reference to secret electronic equipment. The Court was content to rely on what "appeared" to be the case, based on government assertions in a highly ambiguous statement by Secretary of the Air Force Thomas K. Finletter. His statement referred to the secret equipment and to the accident report, but never said clearly or conclusively that the report actually mentioned the equipment.

The Air Force declassified the accident report in the 1990s and Judith Loether, daughter of one of the civilian engineers who died on the plane, located the report during an Internet search in February 2000. The report does not discuss the secret equipment. As a result, the three families returned to court in 2003 on a coram nobis petition, charging that the judiciary had been misled by the government and there had been fraud against the courts.

As recounted in my book, In The Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006), the families lost in district court and the Third Circuit. On May 1, 2006, the Supreme Court denied certiorari. The Third Circuit decided on the ground of "judicial finality," which is an important principle. Every case cannot be relitigated. However, the Third Circuit gave no attention to another essential value. The judiciary cannot allow litigants to mislead a court so that it decides in a manner it would not have if in possession of correct information. That is especially so when the litigant is the federal government, which is in court more than any other party.

To preserve its independent status, the judiciary must have the capacity to critically examine executive claims. Otherwise there is no system of checks and balances, private litigants will have no opportunity to successfully contest government actions, and it will appear that the executive and judicial branches are forming a common front on national security cases. The fact that the documents in the B-29 case, once declassified, contained no state secrets produced a stain on the Court's integrity and a loss of confidence in the judiciary's ability to exercise an independent role.

What Options Are Available to the Courts?

As with the district court and the Third Circuit in the original Reynolds case, federal courts can present the government with a choice: either surrender a requested documents to the district judge, for in camera inspection, or lose the case. In criminal cases, it has long been recognized that if federal prosecutors want to charge someone with a crime, the defendant has a right to documents needed to establish innocence. The judiciary should not defer to executive departments and allow the suppression of documents that might tend to exculpate. As noted in U.S. v. Beekman, (2d Cir. 1946), when the government "institutes criminal procedures in which evidence, otherwise privileged under a statute or regulation, becomes importantly relevant, it abandons the privilege."

What Constitutional Values Are at Stake in State Secrets Cases?

The state secrets privilege should be treated as qualified, not absolute. Otherwise there is no adversary process in court, no exercise of judicial independence over available evidence, and no fairness accorded to private litigants who challenge the government.

In 1971, the D.C. Circuit argued that "[a]n essential ingredient of our rule of law is the authority of the courts to determine whether an executive official or agency has complied with the Constitution and with the mandates of Congress which define and limit the authority of the executive." Claims of executive power "cannot override the duty of the court to assure than an official has not exceeded his charter or flouted the legislative will." The court proceeded to lay down this warning: "No executive official or agency can be given absolute authority to determine what documents in his possession may be considered by the court in its task. Otherwise the head of an executive department would have the power on his own say so to cover up all evidence of fraud and corruption when a federal court or grand jury was investigating malfeasance in office, and this is not the law." Committee for Nuclear Responsibility, Inc. v. Seaborg, (D.C. Cir. 1971).

Lowering the veil
Posted by R C - Ra Conteur
11/18/2006, 12:53 AM

It would appear from "Reynolds" that there is sufficient cause for the Court to reasonably doubt the claim of privilege in such cases. Generally the Founders intended for government to be held in check by the enumerated Amendments and language specific to "the people." It is then left to a body other than the Executive to weigh the claims of privilege specifically to pierce the opportunity to hide malfeasance. In an era of exponential technological advances the people cannot be left with protections crafted twenty, thirty or more years ago. It is incumbent upon the modern Court to acknowledge the tendency toward government claims of proprietary technology as "State's Secrets," when in fact such technology is developed at the expense of and benefit for the people and must be weighed firstly as the property thereof and secondarily as of value to those people if kept cloaked from potential enemies of the State. This thrusts each case squarely into the hands of the judiciary whose business is specifically to test the Constitutionality of such privilege claims.

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