State secrets privilege

 

          The coauthor spent an entire career with the Central Intelligence Agency operating under cover protected by a well defined veil of absolute secrecy. Without the ability to operate in complete secrecy, the Intelligence Community would be rendered useless. Today, the inviolability of the secrecy veil is subject to question, and the rules of engagement are giving pause to America’s Clandestine Service at a time when timidity is an arrow in the quiver of the Enemy.

           The state secrets privilege generally allows the Executive Branch  to refuse  to produce documents or give over evidence or testimony to any court, any citizen or any legislator  on the grounds that the evidence is secret or may lead to the revelation of secret information that would harm national security or foreign relations interests if disclosed.  Moreover, no lawsuit which requires state secret information to maintain it may be brought over the objection of the government. The Executive Branch regards the state secrets privilege as a justiciability bar and the Courts almost always agree.

                   Rarely does a  court  ever order the Executive Branch to reveal, over its objection, information that is classified “secret” or above.  Even when the government has negligently disclosed information, courts have not allowed the opposing side access  or permission to publish classified information when the government objects. Even when the basis of the government’s objections or position is clearly suspicious or fallacious, the courts have not required or permitted disclosure of classified material.  The state secrets privilege is almost always successful. Moreover, it is rare that a court will even review classified material in camera, almost always relying on the good faith of the government to truthfully mount the privilege and candidly represent the facts. This unequivocal privilege is now under substantial attack.

 

          History of the state secrets privilege

 

          The state secrets privilege in the United States is the progeny of the Common Law.   The power to hold secrets, like the power to conduct affairs of state, was the undisputed right of the British Crown.  Since the Crown always operated in the public interest or was always deemed by itself to do so, and since secrets were held only to benefit the realm and its citizens, the Crown’s right to protect its secrets was inviolate, and was unquestioned by Parliament. With the transfusion of the Common Law into the gene pool of the new American legal  and political systems, it was commonly understood that the state secrets privilege was a hereditament of the Executive Branch, as administrator of the government, and the conductor of state affairs.

          It has been said that the Trial of Aaron Burr for treason solidified the State Secrets Doctrine in the newly erected Executive Branch. While that characterization is not legally accurate, the trial is indicative of the early  common understanding of the issue.  Having been charged by the government, Aaron Burr sought to subpoena from President Thomas Jefferson letters to the President from  former Burr confidant General Wilkerson which Burr said would shed light on his defense. Burr petitioned the Judge, who happened to be Justice John Marshall.

          At issue was the collision between the Judiciary and the Executive. If Marshall had ordered the letters  produced and the President ignored the subpoena, a major constitutional crisis would ensue. On the other hand, if the President succumbed to the Subpoena and produced what could be considered secrets of the state, the Judiciary could be used  forever as a foil to uncover and disclose in any relevant case, state secrets—obliterating the concept, emasculating the President and dooming the nation’s security. Indeed, in the first known case of “gray-mail”, Aaron Burr counted on the conflict to free him.

           President Jefferson avoided the conflict by agreeing to voluntarily produce, for the benefit of the justice of the situation, relevant documents. But in his response letter to Justice Marshall, Jefferson  laid out the State Secrets Privilege Doctrine, stating that the President reserved the right, “independent of all other authority” to determine what papers, coming into the care, custody and control of the President, the public interest permits to be disclosed and to whom. This first expression of the state secrets doctrine laid out the following  elements of the Privilege:

1.     The Privilege is designed to serve the Public Interest.

2.     The President determines the Public Interest.

3.     The President reserves for himself the right to make this determination without interference by any other Branch.

4.     The President determines what secrets will be disclosed and to whom.

          Interestingly, this formulation is precisely the description of  the Crown Privilege Doctrine laid out almost 200 years before. Moreover, it is  also the doctrine underlying the “Unitary Executive President” hotly debated today, over 200 years later. It is a doctrine formulated by the interpretation by the Executive Branch of its implied Article II Powers.

          The political contest between the Jeffersonians and the Federalists, which resulted in the creation of the implied  power of Judicial Review announced  by Justice John Marshall in Marbury vs. Madison, was to play a dramatic role in  the terms of custody of state secrets by the Executive  Branch over the next two centuries.  Marbury presented to the young Supreme Court a contest between the Executive and Legislative Branches over the legality of the appointment of federal commissioners. The Court determined that its role in government was to provide Judicial Review of such contests and to be the sole and final arbiter of issues presented to it in appropriate cases. It was a gigantic grasp of power and responsibility, which it assumed by implying that the Constitution, while not literally giving it such authority,  could not be construed otherwise.  The doctrine is at the heart of a burgeoning constitutional crisis brewing today.

          Five decades later, and soon after the Civil War, with the Union in shatters and the federal government rapidly gaining power, the Supreme Court  was presented with a small case of monumental future importance. In  Totten vs. United States, the Court was squarely faced with a conflict between normal jurisprudence and the exceptional concepts implicated in a case involving state secrets. Totten involved a compensation claim for espionage services.  A personal representative of  William A. Lloyd’s estate claimed that President Abraham Lincoln had retained LLyod  to spy for the Union and that the government then failed to pay him the agreed compensation. The Court rejected the claim, holding  that alleged contracts based on secret agreements are unenforceable. If the agreements are made in secret, the very disclosure of the secrecy would be a breach, barring suit.  And for good measure, the court laid out the principle, followed ever since, that “public policy” forbids the maintenance of an action in any court, the prosecution of which would inevitably involve the disclosure of state secrets.

 

          In the 20^th Century, as the United States ascended in international power and influence, the practical exigencies of matters of state fertilized the Executive Branch, which increasingly grew exponentially in power and size. Moreover, the Civil War, World War I, the passage of the Internal Revenue Act, the Great Depression, and World War II transformed the central Federal Government into a growing, mostly unchallenged, monolith of the concentration of power.  In matters of national security, the two other Branches yielded almost without question to the judgments of the President. For example, during World War II, when the President determined that 150,000 citizens “might” pose a threat—the Court unhesitatingly acceded to the creation of prison camps and  the incarceration of these loyal citizens-- many of whom were children---without trial or bail.

          The Cold War posed the next challenge to the ascendancy of the United States and provided the platform for the creation of the Unitary Executive. Since the country faced an awesome, powerful foe with a frightening weapon and delivery system,  it aggressively focused its intelligence and military arsenal on that Enemy. Moreover, a regime of secrets and their custody and care had been carefully constructed through two World Wars. The Office of Strategic Services morphed into the Central Intelligence Agency.

  When a B-29 war plane crashed in 1948 in Georgia, killing the crew and all occupants, the death benefits lawsuit which ensued was defended by the Air Force with a stone-wall. The Air Force refused to produce in court the accident report and details, even after Court Order, claiming that the aircraft was on a secret mission. Indeed, the Air Force asserted the precise formulation of the state secrets privilege formulated by President Jefferson, contending that the courts must accept, without question, the determination of the Secretary of the Air Force as to non-disclosure.

          When the case, Reynolds vs. United States, made its way to the Supreme Court, the state secrets privilege as formulated by the Air Force, was squarely recognized  and affirmed by the Court. Once again the Court yielded to the responsibility of the President to conduct war, even a cold one,  and to preserve the nation’s  secrets. While the Court held that the privilege must be formally raised by the Executive and determined by the Court, it  warned the nation’s judiciary that such determination must be made “without forcing a disclosure of the very thing the privilege is designed to protect.”  The Court would not, however, sanction a policy of automatic disclosure in camera to the presiding judge.

          The holding of the Court in Reynolds in 1953 has been the latest direct analysis by the Court on the state secrets privilege. What is ironic is that the “secrets” withheld  in 1949 were ultimately and recently disclosed--- on the  world wide internet. The accident report concerning the B-29 StratoFortress made its way finally out by disgorgement of massive documents of the era by the government. The report revealed that the cause of the accident had been gross mismanagement of the maintenance of the aircraft---having nothing to do with national security. It was just a cover-up, one of many of which have been uncovered in judicial, legislative and journalistic excavations of Executive stone-walls.

          No Congress has ever passed a law expressly approving the state secrets doctrine. Congress has certainly legislated in the area often and recently, codifying certain aspects of the privilege. But it has always respected the President’s privilege, which is as implicit as is the doctrine of Judicial Review or the Oversight jurisdiction of Congress.  Indeed, the Provenance of the  Presidential state secrets doctrine is now as pristine as Spanish Land Grants are in the chains of title of Florida real estate. It is expressed in various forms, usually by Executive Order. Various classifications of information under the care, custody or control of the Executive Branch have been specified. Information is either “confidential”, “secret” or “Top secret”. In practice, however, there are levels of even “top secret” information, restricting the most sensitive information to a very limited number of trusted  individuals--- almost none of whom are elected officials. Most information is compartmentalized and shared only by “stove-pipe” communication to vetted individuals on a  “need to know” basis. Publication of this information may be done only with the express written permission of authorized officers of the government. Even publications by former officials are frequently reviewed to insure that classified information is not intentionally or unintentionally published. Requests  to the government under the Freedom of Information Act are reviewed to insure that secret information is not disclosed. 

                    America’s secrets cover a wide spectrum--sensitive diplomatic communications, covert surveillance, political priorities and views, military secrets, strategically important inventions, results of clandestine collection efforts, analyses, consultations, scientific and criminal investigations, and many other areas. Today, America classifies and secretes much more information, on many more subjects, at the behest of many more government officials than ever before. Indeed, so great has the explosion in classification become evident, that the Federation of American Scientists has decried the direct and collateral effects of overclassification. A consensus has emerged that the instinct to classify is stifling important scientific investigations and hurting industy.

                   With the rapid growth of secrets has come the rapid use of the state secrets privilege, as contests, in various contexts, have erupted over the use of the privilege as both a shield and a sword by the government.

                    Various scandalous situations over the intervening years since the Court decided Reynolds have raised public, and therefore, political hackles-- questioning the carte blanche  legislative and judicial treatment of the state secrets privilege. While countless secret transactions, diplomatic communications,  risky operations,  and espionage missions occur without blemish every day in the Intelligence Community and in America’s vital interests, a few disasters percolate  yearly out  of the stove-pipes and into the public realm. Sometimes, they result in real or theatric legislative outrage. For example, the House Permanent Select Committee on Intelligence  has increasingly used Congress’ check book as an implicit right of oversight to poke into the intentionally dark corners of the Intelligence Community. The Federal Intelligence Surveillance Court and the Office of National Intelligence, for example, grew out of a recent political backlash .

           In the present era, faced with the reality of dozens of scandals and abuses of the state secrets privilege, the Judiciary has increasingly questioned its  subsidiary, submissive role in the state secrets area. While recognizing that it simply does not have the expertise nor the personnel or budget to review securely the evidence relevant to a normally justiciable case, it has nevertheless begun to aggressively delve more and more into the area.

          Just as importantly, courts are more reluctant each year to deny access to the courthouse to litigants who present prima facie  bona fide claims arising out of what appear to be suspicious fact patterns. Indeed, so frustrated has the judiciary become with denying standing to bona fide disputes on grounds that no remedy is available, that the Court in Bivens vs.Six Unknown Named Agents, created an implied remedy out of whole cloth. The Court determined that federal “common law” theories of action in fact existed and allocated humongous power to the courts to expand exponentially the right to sue under circumstances which, in the previous 200 years, would have been unthinkable.  Bivens actions are now being used by all manner of litigants, secret agents or not, to drag the government dirty laundry into Chambers. Furthermore, the Courts are increasingly used by organizational litigants to score political or policy points , affect the direction of foreign policy and, of course , drag out legitimate state secrets to the Media .

         

          Clearly, the Executive Branch, the Judiciary and  Congress are on a collision course leading to a Constitutional crisis. But President Thomas Jefferson and President Barack Obama are joined at the hip on the issue of state secrets. Jefferson warned that the right to disclose state secrets was an incontestable, exclusive privilege of the Executive Branch. The privilege could not be invaded by the Judiciary or the Legislative Body, except by invitation or acquiescence of the President. This was clearly the view of President Bush.  To the surprise of many observers, President Obama took the Jeffersonian/Bush view in Mohamed v. Jeppensen Dataplan, Inc. filing briefs on the issue identical to those filed by the Bush Administration. The initial panel of 9^th Circuit Judges pushed back, holding that the state secrets doctrine was not inviolate and that the judiciary will play an important Judicial Review role. Presently, the entire 9^th Circuit has decided to rehear the case, which has now been argued and submitted to it.

          The issue is now clearly joined from Langley, Virginia to Capitol Hill to every federal appellate circuit in the land. How can the burgeoning Intelligence Community operate effectively with lawyers, judges and politicians in every black bag?  How can a President fight wars or conduct delicate, secret operations if every disgruntled operative  or political group can launch an action in court?  Moreover, what penetration opportunities are presented  to our very talented, well-financed and determined adversaries when secrets and secret operatives are the subject of court filings?

           On the other hand, our system of government is different than all others. The “government” is not just the Executive Branch. Power is shared in our system. Who says that an Executive Branch beauracrat is more trustworthy than one from the Judiciary or Congress?  After all, hundreds of treasonous “trusted” officials and employees have been caught, tried and imprisoned. To date, no Judge or staff member has been arrested spilling the beans. Not one Senator or Representative has been caught handing over secrets, caught by a “honey-trap” espionage operation or blackmailed by the enemy.

          But if the Federal Judiciary, using its now established power of Judicial Review accepts the invitation of countless litigants to review claims based on state secrets, how will it handle the cases? Can it competently decide for itself that the decision of the Intelligence Community to secure or secret certain information from the public is wrong or made in bad faith?  Should it appoint outside experts to review the decisions of the Intelligence Community party which is before it?  In the real world of the Intelligence analysis mosaic, can  a judge make solid determinations, contrary to those whose profession it is to see through thousands of other pieces of compartmentalized information? Should a judge question the credibility of the representations of a government department when its determination is question by a litigant? How can it be said that a Judge’s decisions on the importance of protecting a state secret are any better than the expertise an action- experienced intelligence professional?

          Rarely have the Branches collided so directly that a crisis has resulted. But the stakes in this power struggle are huge. The absolute power to withhold information relevant to a person’s or Congress’s legitimate remedy invites, as it has repeatedly in our country, injustice and perhaps criminal activity.  Is the failure to provide justice to one individual or a group just the price we must pay to keep the nation secure? The judicial power to grant or deny justiciablity without indepth review or development of secret facts contravenes basic tenets of our open courts and our concept of liberty and justice--- but it also could result in confusion and uncertainty by managers of secret operations. Uncertainty and fear of reprisal  or condemnation breeds timidity. And timidity is an arrow in the quiver of the enemy.  An attack on American soil resulting from interference in the way intelligence operations are conducted by the judiciary or Congress would result in immediate and ferocious public backlash. The Judiciary can function only in an atmosphere of respect and comity. It is functionally dependent on the Good Will of the electorate who will follow and respect its rulings only if it is  convinced they are the result of honest, thoughtful and fair process in protection of justice and the common good. Disaster would ensue if the courts produced  Orders and Judgments that neither the President nor Congress would enforce or recognize, bolstered by an outraged public in an atmosphere of fear and insecurity. 

          What has always happened in America is that the tug and pull of logic, politics and law results in a shared concensus of what will work fairly.  A sensible, secure, predictable, and consistent system of litigation of claims  or discovery which rely on state secrets must be created to deter the real risk of cover-up of criminal, tortious or otherwise illegal activity. Congress is already at work, debating and attempting to craft a State Secrets Act. The ad hoc decisional regime of the courts will not work--- and the peremptory exclusional position of the President may not be politically possible in an era of supposed “transparency.”

          At the same time, there must be a wide-spread recognition that robust, aggressive and imaginative intelligence activities are absolutely vital to our national interest and personal security.  Operations and strategies cannot and will not be conducted in an atmosphere of trepidation or after-action litigation.  An Intelligence Officer on a mission with a compulsory lawyer in tow electronically or metaphorically  is not only a contradiction, but an engraved invitation to our enemies.

 

                              State secrets privilege

 

          The coauthor spent an entire career with the Central Intelligence Agency operating under cover protected by a well defined veil of absolute secrecy. Without the ability to operate in complete secrecy, the Intelligence Community would be rendered useless. Today, the inviolability of the secrecy veil is subject to question, and the rules of engagement are giving pause to America’s Clandestine Service at a time when timidity is an arrow in the quiver of the Enemy.

           The state secrets privilege generally allows the Executive Branch  to refuse  to produce documents or give over evidence or testimony to any court, any citizen or any legislator  on the grounds that the evidence is secret or may lead to the revelation of secret information that would harm national security or foreign relations interests if disclosed.  Moreover, no lawsuit which requires state secret information to maintain it may be brought over the objection of the government. The Executive Branch regards the state secrets privilege as a justiciability bar and the Courts almost always agree.

                   Rarely does a  court  ever order the Executive Branch to reveal, over its objection, information that is classified “secret” or above.  Even when the government has negligently disclosed information, courts have not allowed the opposing side access  or permission to publish classified information when the government objects. Even when the basis of the government’s objections or position is clearly suspicious or fallacious, the courts have not required or permitted disclosure of classified material.  The state secrets privilege is almost always successful. Moreover, it is rare that a court will even review classified material in camera, almost always relying on the good faith of the government to truthfully mount the privilege and candidly represent the facts. This unequivocal privilege is now under substantial attack.

 

          History of the state secrets privilege

 

          The state secrets privilege in the United States is the progeny of the Common Law.   The power to hold secrets, like the power to conduct affairs of state, was the undisputed right of the British Crown.  Since the Crown always operated in the public interest or was always deemed by itself to do so, and since secrets were held only to benefit the realm and its citizens, the Crown’s right to protect its secrets was inviolate, and was unquestioned by Parliament. With the transfusion of the Common Law into the gene pool of the new American legal  and political systems, it was commonly understood that the state secrets privilege was a hereditament of the Executive Branch, as administrator of the government, and the conductor of state affairs.

          It has been said that the Trial of Aaron Burr for treason solidified the State Secrets Doctrine in the newly erected Executive Branch. While that characterization is not legally accurate, the trial is indicative of the early  common understanding of the issue.  Having been charged by the government, Aaron Burr sought to subpoena from President Thomas Jefferson letters to the President from  former Burr confidant General Wilkerson which Burr said would shed light on his defense. Burr petitioned the Judge, who happened to be Justice John Marshall.

          At issue was the collision between the Judiciary and the Executive. If Marshall had ordered the letters  produced and the President ignored the subpoena, a major constitutional crisis would ensue. On the other hand, if the President succumbed to the Subpoena and produced what could be considered secrets of the state, the Judiciary could be used  forever as a foil to uncover and disclose in any relevant case, state secrets—obliterating the concept, emasculating the President and dooming the nation’s security. Indeed, in the first known case of “gray-mail”, Aaron Burr counted on the conflict to free him.

           President Jefferson avoided the conflict by agreeing to voluntarily produce, for the benefit of the justice of the situation, relevant documents. But in his response letter to Justice Marshall, Jefferson  laid out the State Secrets Privilege Doctrine, stating that the President reserved the right, “independent of all other authority” to determine what papers, coming into the care, custody and control of the President, the public interest permits to be disclosed and to whom. This first expression of the state secrets doctrine laid out the following  elements of the Privilege:

1.     The Privilege is designed to serve the Public Interest.

2.     The President determines the Public Interest.

3.     The President reserves for himself the right to make this determination without interference by any other Branch.

4.     The President determines what secrets will be disclosed and to whom.

          Interestingly, this formulation is precisely the description of  the Crown Privilege Doctrine laid out almost 200 years before. Moreover, it is  also the doctrine underlying the “Unitary Executive President” hotly debated today, over 200 years later. It is a doctrine formulated by the interpretation by the Executive Branch of its implied Article II Powers.

          The political contest between the Jeffersonians and the Federalists, which resulted in the creation of the implied  power of Judicial Review announced  by Justice John Marshall in Marbury vs. Madison, was to play a dramatic role in  the terms of custody of state secrets by the Executive  Branch over the next two centuries.  Marbury presented to the young Supreme Court a contest between the Executive and Legislative Branches over the legality of the appointment of federal commissioners. The Court determined that its role in government was to provide Judicial Review of such contests and to be the sole and final arbiter of issues presented to it in appropriate cases. It was a gigantic grasp of power and responsibility, which it assumed by implying that the Constitution, while not literally giving it such authority,  could not be construed otherwise.  The doctrine is at the heart of a burgeoning constitutional crisis brewing today.

          Five decades later, and soon after the Civil War, with the Union in shatters and the federal government rapidly gaining power, the Supreme Court  was presented with a small case of monumental future importance. In  Totten vs. United States, the Court was squarely faced with a conflict between normal jurisprudence and the exceptional concepts implicated in a case involving state secrets. Totten involved a compensation claim for espionage services.  A personal representative of  William A. Lloyd’s estate claimed that President Abraham Lincoln had retained LLyod  to spy for the Union and that the government then failed to pay him the agreed compensation. The Court rejected the claim, holding  that alleged contracts based on secret agreements are unenforceable. If the agreements are made in secret, the very disclosure of the secrecy would be a breach, barring suit.  And for good measure, the court laid out the principle, followed ever since, that “public policy” forbids the maintenance of an action in any court, the prosecution of which would inevitably involve the disclosure of state secrets.

 

          In the 20^th Century, as the United States ascended in international power and influence, the practical exigencies of matters of state fertilized the Executive Branch, which increasingly grew exponentially in power and size. Moreover, the Civil War, World War I, the passage of the Internal Revenue Act, the Great Depression, and World War II transformed the central Federal Government into a growing, mostly unchallenged, monolith of the concentration of power.  In matters of national security, the two other Branches yielded almost without question to the judgments of the President. For example, during World War II, when the President determined that 150,000 citizens “might” pose a threat—the Court unhesitatingly acceded to the creation of prison camps and  the incarceration of these loyal citizens-- many of whom were children---without trial or bail.

          The Cold War posed the next challenge to the ascendancy of the United States and provided the platform for the creation of the Unitary Executive. Since the country faced an awesome, powerful foe with a frightening weapon and delivery system,  it aggressively focused its intelligence and military arsenal on that Enemy. Moreover, a regime of secrets and their custody and care had been carefully constructed through two World Wars. The Office of Strategic Services morphed into the Central Intelligence Agency.

  When a B-29 war plane crashed in 1948 in Georgia, killing the crew and all occupants, the death benefits lawsuit which ensued was defended by the Air Force with a stone-wall. The Air Force refused to produce in court the accident report and details, even after Court Order, claiming that the aircraft was on a secret mission. Indeed, the Air Force asserted the precise formulation of the state secrets privilege formulated by President Jefferson, contending that the courts must accept, without question, the determination of the Secretary of the Air Force as to non-disclosure.

          When the case, Reynolds vs. United States, made its way to the Supreme Court, the state secrets privilege as formulated by the Air Force, was squarely recognized  and affirmed by the Court. Once again the Court yielded to the responsibility of the President to conduct war, even a cold one,  and to preserve the nation’s  secrets. While the Court held that the privilege must be formally raised by the Executive and determined by the Court, it  warned the nation’s judiciary that such determination must be made “without forcing a disclosure of the very thing the privilege is designed to protect.”  The Court would not, however, sanction a policy of automatic disclosure in camera to the presiding judge.

          The holding of the Court in Reynolds in 1953 has been the latest direct analysis by the Court on the state secrets privilege. What is ironic is that the “secrets” withheld  in 1949 were ultimately and recently disclosed--- on the  world wide internet. The accident report concerning the B-29 StratoFortress made its way finally out by disgorgement of massive documents of the era by the government. The report revealed that the cause of the accident had been gross mismanagement of the maintenance of the aircraft---having nothing to do with national security. It was just a cover-up, one of many of which have been uncovered in judicial, legislative and journalistic excavations of Executive stone-walls.

          No Congress has ever passed a law expressly approving the state secrets doctrine. Congress has certainly legislated in the area often and recently, codifying certain aspects of the privilege. But it has always respected the President’s privilege, which is as implicit as is the doctrine of Judicial Review or the Oversight jurisdiction of Congress.  Indeed, the Provenance of the  Presidential state secrets doctrine is now as pristine as Spanish Land Grants are in the chains of title of Florida real estate. It is expressed in various forms, usually by Executive Order. Various classifications of information under the care, custody or control of the Executive Branch have been specified. Information is either “confidential”, “secret” or “Top secret”. In practice, however, there are levels of even “top secret” information, restricting the most sensitive information to a very limited number of trusted  individuals--- almost none of whom are elected officials. Most information is compartmentalized and shared only by “stove-pipe” communication to vetted individuals on a  “need to know” basis. Publication of this information may be done only with the express written permission of authorized officers of the government. Even publications by former officials are frequently reviewed to insure that classified information is not intentionally or unintentionally published. Requests  to the government under the Freedom of Information Act are reviewed to insure that secret information is not disclosed. 

                    America’s secrets cover a wide spectrum--sensitive diplomatic communications, covert surveillance, political priorities and views, military secrets, strategically important inventions, results of clandestine collection efforts, analyses, consultations, scientific and criminal investigations, and many other areas. Today, America classifies and secretes much more information, on many more subjects, at the behest of many more government officials than ever before. Indeed, so great has the explosion in classification become evident, that the Federation of American Scientists has decried the direct and collateral effects of overclassification. A consensus has emerged that the instinct to classify is stifling important scientific investigations and hurting industy.

                   With the rapid growth of secrets has come the rapid use of the state secrets privilege, as contests, in various contexts, have erupted over the use of the privilege as both a shield and a sword by the government.

                    Various scandalous situations over the intervening years since the Court decided Reynolds have raised public, and therefore, political hackles-- questioning the carte blanche  legislative and judicial treatment of the state secrets privilege. While countless secret transactions, diplomatic communications,  risky operations,  and espionage missions occur without blemish every day in the Intelligence Community and in America’s vital interests, a few disasters percolate  yearly out  of the stove-pipes and into the public realm. Sometimes, they result in real or theatric legislative outrage. For example, the House Permanent Select Committee on Intelligence  has increasingly used Congress’ check book as an implicit right of oversight to poke into the intentionally dark corners of the Intelligence Community. The Federal Intelligence Surveillance Court and the Office of National Intelligence, for example, grew out of a recent political backlash .

           In the present era, faced with the reality of dozens of scandals and abuses of the state secrets privilege, the Judiciary has increasingly questioned its  subsidiary, submissive role in the state secrets area. While recognizing that it simply does not have the expertise nor the personnel or budget to review securely the evidence relevant to a normally justiciable case, it has nevertheless begun to aggressively delve more and more into the area.

          Just as importantly, courts are more reluctant each year to deny access to the courthouse to litigants who present prima facie  bona fide claims arising out of what appear to be suspicious fact patterns. Indeed, so frustrated has the judiciary become with denying standing to bona fide disputes on grounds that no remedy is available, that the Court in Bivens vs.Six Unknown Named Agents, created an implied remedy out of whole cloth. The Court determined that federal “common law” theories of action in fact existed and allocated humongous power to the courts to expand exponentially the right to sue under circumstances which, in the previous 200 years, would have been unthinkable.  Bivens actions are now being used by all manner of litigants, secret agents or not, to drag the government dirty laundry into Chambers. Furthermore, the Courts are increasingly used by organizational litigants to score political or policy points , affect the direction of foreign policy and, of course , drag out legitimate state secrets to the Media .

         

          Clearly, the Executive Branch, the Judiciary and  Congress are on a collision course leading to a Constitutional crisis. But President Thomas Jefferson and President Barack Obama are joined at the hip on the issue of state secrets. Jefferson warned that the right to disclose state secrets was an incontestable, exclusive privilege of the Executive Branch. The privilege could not be invaded by the Judiciary or the Legislative Body, except by invitation or acquiescence of the President. This was clearly the view of President Bush.  To the surprise of many observers, President Obama took the Jeffersonian/Bush view in Mohamed v. Jeppensen Dataplan, Inc. filing briefs on the issue identical to those filed by the Bush Administration. The initial panel of 9^th Circuit Judges pushed back, holding that the state secrets doctrine was not inviolate and that the judiciary will play an important Judicial Review role. Presently, the entire 9^th Circuit has decided to rehear the case, which has now been argued and submitted to it.

          The issue is now clearly joined from Langley, Virginia to Capitol Hill to every federal appellate circuit in the land. How can the burgeoning Intelligence Community operate effectively with lawyers, judges and politicians in every black bag?  How can a President fight wars or conduct delicate, secret operations if every disgruntled operative  or political group can launch an action in court?  Moreover, what penetration opportunities are presented  to our very talented, well-financed and determined adversaries when secrets and secret operatives are the subject of court filings?

           On the other hand, our system of government is different than all others. The “government” is not just the Executive Branch. Power is shared in our system. Who says that an Executive Branch beauracrat is more trustworthy than one from the Judiciary or Congress?  After all, hundreds of treasonous “trusted” officials and employees have been caught, tried and imprisoned. To date, no Judge or staff member has been arrested spilling the beans. Not one Senator or Representative has been caught handing over secrets, caught by a “honey-trap” espionage operation or blackmailed by the enemy.

          But if the Federal Judiciary, using its now established power of Judicial Review accepts the invitation of countless litigants to review claims based on state secrets, how will it handle the cases? Can it competently decide for itself that the decision of the Intelligence Community to secure or secret certain information from the public is wrong or made in bad faith?  Should it appoint outside experts to review the decisions of the Intelligence Community party which is before it?  In the real world of the Intelligence analysis mosaic, can  a judge make solid determinations, contrary to those whose profession it is to see through thousands of other pieces of compartmentalized information? Should a judge question the credibility of the representations of a government department when its determination is question by a litigant? How can it be said that a Judge’s decisions on the importance of protecting a state secret are any better than the expertise an action- experienced intelligence professional?

          Rarely have the Branches collided so directly that a crisis has resulted. But the stakes in this power struggle are huge. The absolute power to withhold information relevant to a person’s or Congress’s legitimate remedy invites, as it has repeatedly in our country, injustice and perhaps criminal activity.  Is the failure to provide justice to one individual or a group just the price we must pay to keep the nation secure? The judicial power to grant or deny justiciablity without indepth review or development of secret facts contravenes basic tenets of our open courts and our concept of liberty and justice--- but it also could result in confusion and uncertainty by managers of secret operations. Uncertainty and fear of reprisal  or condemnation breeds timidity. And timidity is an arrow in the quiver of the enemy.  An attack on American soil resulting from interference in the way intelligence operations are conducted by the judiciary or Congress would result in immediate and ferocious public backlash. The Judiciary can function only in an atmosphere of respect and comity. It is functionally dependent on the Good Will of the electorate who will follow and respect its rulings only if it is  convinced they are the result of honest, thoughtful and fair process in protection of justice and the common good. Disaster would ensue if the courts produced  Orders and Judgments that neither the President nor Congress would enforce or recognize, bolstered by an outraged public in an atmosphere of fear and insecurity. 

          What has always happened in America is that the tug and pull of logic, politics and law results in a shared concensus of what will work fairly.  A sensible, secure, predictable, and consistent system of litigation of claims  or discovery which rely on state secrets must be created to deter the real risk of cover-up of criminal, tortious or otherwise illegal activity. Congress is already at work, debating and attempting to craft a State Secrets Act. The ad hoc decisional regime of the courts will not work--- and the peremptory exclusional position of the President may not be politically possible in an era of supposed “transparency.”

          At the same time, there must be a wide-spread recognition that robust, aggressive and imaginative intelligence activities are absolutely vital to our national interest and personal security.  Operations and strategies cannot and will not be conducted in an atmosphere of trepidation or after-action litigation.  An Intelligence Officer on a mission with a compulsory lawyer in tow electronically or metaphorically  is not only a contradiction, but an engraved invitation to our enemies.

 

                              State secrets privilege

 

          The coauthor spent an entire career with the Central Intelligence Agency operating under cover protected by a well defined veil of absolute secrecy. Without the ability to operate in complete secrecy, the Intelligence Community would be rendered useless. Today, the inviolability of the secrecy veil is subject to question, and the rules of engagement are giving pause to America’s Clandestine Service at a time when timidity is an arrow in the quiver of the Enemy.

           The state secrets privilege generally allows the Executive Branch  to refuse  to produce documents or give over evidence or testimony to any court, any citizen or any legislator  on the grounds that the evidence is secret or may lead to the revelation of secret information that would harm national security or foreign relations interests if disclosed.  Moreover, no lawsuit which requires state secret information to maintain it may be brought over the objection of the government. The Executive Branch regards the state secrets privilege as a justiciability bar and the Courts almost always agree.

                   Rarely does a  court  ever order the Executive Branch to reveal, over its objection, information that is classified “secret” or above.  Even when the government has negligently disclosed information, courts have not allowed the opposing side access  or permission to publish classified information when the government objects. Even when the basis of the government’s objections or position is clearly suspicious or fallacious, the courts have not required or permitted disclosure of classified material.  The state secrets privilege is almost always successful. Moreover, it is rare that a court will even review classified material in camera, almost always relying on the good faith of the government to truthfully mount the privilege and candidly represent the facts. This unequivocal privilege is now under substantial attack.

 

          History of the state secrets privilege

 

          The state secrets privilege in the United States is the progeny of the Common Law.   The power to hold secrets, like the power to conduct affairs of state, was the undisputed right of the British Crown.  Since the Crown always operated in the public interest or was always deemed by itself to do so, and since secrets were held only to benefit the realm and its citizens, the Crown’s right to protect its secrets was inviolate, and was unquestioned by Parliament. With the transfusion of the Common Law into the gene pool of the new American legal  and political systems, it was commonly understood that the state secrets privilege was a hereditament of the Executive Branch, as administrator of the government, and the conductor of state affairs.

          It has been said that the Trial of Aaron Burr for treason solidified the State Secrets Doctrine in the newly erected Executive Branch. While that characterization is not legally accurate, the trial is indicative of the early  common understanding of the issue.  Having been charged by the government, Aaron Burr sought to subpoena from President Thomas Jefferson letters to the President from  former Burr confidant General Wilkerson which Burr said would shed light on his defense. Burr petitioned the Judge, who happened to be Justice John Marshall.

          At issue was the collision between the Judiciary and the Executive. If Marshall had ordered the letters  produced and the President ignored the subpoena, a major constitutional crisis would ensue. On the other hand, if the President succumbed to the Subpoena and produced what could be considered secrets of the state, the Judiciary could be used  forever as a foil to uncover and disclose in any relevant case, state secrets—obliterating the concept, emasculating the President and dooming the nation’s security. Indeed, in the first known case of “gray-mail”, Aaron Burr counted on the conflict to free him.

           President Jefferson avoided the conflict by agreeing to voluntarily produce, for the benefit of the justice of the situation, relevant documents. But in his response letter to Justice Marshall, Jefferson  laid out the State Secrets Privilege Doctrine, stating that the President reserved the right, “independent of all other authority” to determine what papers, coming into the care, custody and control of the President, the public interest permits to be disclosed and to whom. This first expression of the state secrets doctrine laid out the following  elements of the Privilege:

1.     The Privilege is designed to serve the Public Interest.

2.     The President determines the Public Interest.

3.     The President reserves for himself the right to make this determination without interference by any other Branch.

4.     The President determines what secrets will be disclosed and to whom.

          Interestingly, this formulation is precisely the description of  the Crown Privilege Doctrine laid out almost 200 years before. Moreover, it is  also the doctrine underlying the “Unitary Executive President” hotly debated today, over 200 years later. It is a doctrine formulated by the interpretation by the Executive Branch of its implied Article II Powers.

          The political contest between the Jeffersonians and the Federalists, which resulted in the creation of the implied  power of Judicial Review announced  by Justice John Marshall in Marbury vs. Madison, was to play a dramatic role in  the terms of custody of state secrets by the Executive  Branch over the next two centuries.  Marbury presented to the young Supreme Court a contest between the Executive and Legislative Branches over the legality of the appointment of federal commissioners. The Court determined that its role in government was to provide Judicial Review of such contests and to be the sole and final arbiter of issues presented to it in appropriate cases. It was a gigantic grasp of power and responsibility, which it assumed by implying that the Constitution, while not literally giving it such authority,  could not be construed otherwise.  The doctrine is at the heart of a burgeoning constitutional crisis brewing today.

          Five decades later, and soon after the Civil War, with the Union in shatters and the federal government rapidly gaining power, the Supreme Court  was presented with a small case of monumental future importance. In  Totten vs. United States, the Court was squarely faced with a conflict between normal jurisprudence and the exceptional concepts implicated in a case involving state secrets. Totten involved a compensation claim for espionage services.  A personal representative of  William A. Lloyd’s estate claimed that President Abraham Lincoln had retained LLyod  to spy for the Union and that the government then failed to pay him the agreed compensation. The Court rejected the claim, holding  that alleged contracts based on secret agreements are unenforceable. If the agreements are made in secret, the very disclosure of the secrecy would be a breach, barring suit.  And for good measure, the court laid out the principle, followed ever since, that “public policy” forbids the maintenance of an action in any court, the prosecution of which would inevitably involve the disclosure of state secrets.

 

          In the 20^th Century, as the United States ascended in international power and influence, the practical exigencies of matters of state fertilized the Executive Branch, which increasingly grew exponentially in power and size. Moreover, the Civil War, World War I, the passage of the Internal Revenue Act, the Great Depression, and World War II transformed the central Federal Government into a growing, mostly unchallenged, monolith of the concentration of power.  In matters of national security, the two other Branches yielded almost without question to the judgments of the President. For example, during World War II, when the President determined that 150,000 citizens “might” pose a threat—the Court unhesitatingly acceded to the creation of prison camps and  the incarceration of these loyal citizens-- many of whom were children---without trial or bail.

          The Cold War posed the next challenge to the ascendancy of the United States and provided the platform for the creation of the Unitary Executive. Since the country faced an awesome, powerful foe with a frightening weapon and delivery system,  it aggressively focused its intelligence and military arsenal on that Enemy. Moreover, a regime of secrets and their custody and care had been carefully constructed through two World Wars. The Office of Strategic Services morphed into the Central Intelligence Agency.

  When a B-29 war plane crashed in 1948 in Georgia, killing the crew and all occupants, the death benefits lawsuit which ensued was defended by the Air Force with a stone-wall. The Air Force refused to produce in court the accident report and details, even after Court Order, claiming that the aircraft was on a secret mission. Indeed, the Air Force asserted the precise formulation of the state secrets privilege formulated by President Jefferson, contending that the courts must accept, without question, the determination of the Secretary of the Air Force as to non-disclosure.

          When the case, Reynolds vs. United States, made its way to the Supreme Court, the state secrets privilege as formulated by the Air Force, was squarely recognized  and affirmed by the Court. Once again the Court yielded to the responsibility of the President to conduct war, even a cold one,  and to preserve the nation’s  secrets. While the Court held that the privilege must be formally raised by the Executive and determined by the Court, it  warned the nation’s judiciary that such determination must be made “without forcing a disclosure of the very thing the privilege is designed to protect.”  The Court would not, however, sanction a policy of automatic disclosure in camera to the presiding judge.

          The holding of the Court in Reynolds in 1953 has been the latest direct analysis by the Court on the state secrets privilege. What is ironic is that the “secrets” withheld  in 1949 were ultimately and recently disclosed--- on the  world wide internet. The accident report concerning the B-29 StratoFortress made its way finally out by disgorgement of massive documents of the era by the government. The report revealed that the cause of the accident had been gross mismanagement of the maintenance of the aircraft---having nothing to do with national security. It was just a cover-up, one of many of which have been uncovered in judicial, legislative and journalistic excavations of Executive stone-walls.

          No Congress has ever passed a law expressly approving the state secrets doctrine. Congress has certainly legislated in the area often and recently, codifying certain aspects of the privilege. But it has always respected the President’s privilege, which is as implicit as is the doctrine of Judicial Review or the Oversight jurisdiction of Congress.  Indeed, the Provenance of the  Presidential state secrets doctrine is now as pristine as Spanish Land Grants are in the chains of title of Florida real estate. It is expressed in various forms, usually by Executive Order. Various classifications of information under the care, custody or control of the Executive Branch have been specified. Information is either “confidential”, “secret” or “Top secret”. In practice, however, there are levels of even “top secret” information, restricting the most sensitive information to a very limited number of trusted  individuals--- almost none of whom are elected officials. Most information is compartmentalized and shared only by “stove-pipe” communication to vetted individuals on a  “need to know” basis. Publication of this information may be done only with the express written permission of authorized officers of the government. Even publications by former officials are frequently reviewed to insure that classified information is not intentionally or unintentionally published. Requests  to the government under the Freedom of Information Act are reviewed to insure that secret information is not disclosed. 

                    America’s secrets cover a wide spectrum--sensitive diplomatic communications, covert surveillance, political priorities and views, military secrets, strategically important inventions, results of clandestine collection efforts, analyses, consultations, scientific and criminal investigations, and many other areas. Today, America classifies and secretes much more information, on many more subjects, at the behest of many more government officials than ever before. Indeed, so great has the explosion in classification become evident, that the Federation of American Scientists has decried the direct and collateral effects of overclassification. A consensus has emerged that the instinct to classify is stifling important scientific investigations and hurting industy.

                   With the rapid growth of secrets has come the rapid use of the state secrets privilege, as contests, in various contexts, have erupted over the use of the privilege as both a shield and a sword by the government.

                    Various scandalous situations over the intervening years since the Court decided Reynolds have raised public, and therefore, political hackles-- questioning the carte blanche  legislative and judicial treatment of the state secrets privilege. While countless secret transactions, diplomatic communications,  risky operations,  and espionage missions occur without blemish every day in the Intelligence Community and in America’s vital interests, a few disasters percolate  yearly out  of the stove-pipes and into the public realm. Sometimes, they result in real or theatric legislative outrage. For example, the House Permanent Select Committee on Intelligence  has increasingly used Congress’ check book as an implicit right of oversight to poke into the intentionally dark corners of the Intelligence Community. The Federal Intelligence Surveillance Court and the Office of National Intelligence, for example, grew out of a recent political backlash .

           In the present era, faced with the reality of dozens of scandals and abuses of the state secrets privilege, the Judiciary has increasingly questioned its  subsidiary, submissive role in the state secrets area. While recognizing that it simply does not have the expertise nor the personnel or budget to review securely the evidence relevant to a normally justiciable case, it has nevertheless begun to aggressively delve more and more into the area.

          Just as importantly, courts are more reluctant each year to deny access to the courthouse to litigants who present prima facie  bona fide claims arising out of what appear to be suspicious fact patterns. Indeed, so frustrated has the judiciary become with denying standing to bona fide disputes on grounds that no remedy is available, that the Court in Bivens vs.Six Unknown Named Agents, created an implied remedy out of whole cloth. The Court determined that federal “common law” theories of action in fact existed and allocated humongous power to the courts to expand exponentially the right to sue under circumstances which, in the previous 200 years, would have been unthinkable.  Bivens actions are now being used by all manner of litigants, secret agents or not, to drag the government dirty laundry into Chambers. Furthermore, the Courts are increasingly used by organizational litigants to score political or policy points , affect the direction of foreign policy and, of course , drag out legitimate state secrets to the Media .

         

          Clearly, the Executive Branch, the Judiciary and  Congress are on a collision course leading to a Constitutional crisis. But President Thomas Jefferson and President Barack Obama are joined at the hip on the issue of state secrets. Jefferson warned that the right to disclose state secrets was an incontestable, exclusive privilege of the Executive Branch. The privilege could not be invaded by the Judiciary or the Legislative Body, except by invitation or acquiescence of the President. This was clearly the view of President Bush.  To the surprise of many observers, President Obama took the Jeffersonian/Bush view in Mohamed v. Jeppensen Dataplan, Inc. filing briefs on the issue identical to those filed by the Bush Administration. The initial panel of 9^th Circuit Judges pushed back, holding that the state secrets doctrine was not inviolate and that the judiciary will play an important Judicial Review role. Presently, the entire 9^th Circuit has decided to rehear the case, which has now been argued and submitted to it.

          The issue is now clearly joined from Langley, Virginia to Capitol Hill to every federal appellate circuit in the land. How can the burgeoning Intelligence Community operate effectively with lawyers, judges and politicians in every black bag?  How can a President fight wars or conduct delicate, secret operations if every disgruntled operative  or political group can launch an action in court?  Moreover, what penetration opportunities are presented  to our very talented, well-financed and determined adversaries when secrets and secret operatives are the subject of court filings?

           On the other hand, our system of government is different than all others. The “government” is not just the Executive Branch. Power is shared in our system. Who says that an Executive Branch beauracrat is more trustworthy than one from the Judiciary or Congress?  After all, hundreds of treasonous “trusted” officials and employees have been caught, tried and imprisoned. To date, no Judge or staff member has been arrested spilling the beans. Not one Senator or Representative has been caught handing over secrets, caught by a “honey-trap” espionage operation or blackmailed by the enemy.

          But if the Federal Judiciary, using its now established power of Judicial Review accepts the invitation of countless litigants to review claims based on state secrets, how will it handle the cases? Can it competently decide for itself that the decision of the Intelligence Community to secure or secret certain information from the public is wrong or made in bad faith?  Should it appoint outside experts to review the decisions of the Intelligence Community party which is before it?  In the real world of the Intelligence analysis mosaic, can  a judge make solid determinations, contrary to those whose profession it is to see through thousands of other pieces of compartmentalized information? Should a judge question the credibility of the representations of a government department when its determination is question by a litigant? How can it be said that a Judge’s decisions on the importance of protecting a state secret are any better than the expertise an action- experienced intelligence professional?

          Rarely have the Branches collided so directly that a crisis has resulted. But the stakes in this power struggle are huge. The absolute power to withhold information relevant to a person’s or Congress’s legitimate remedy invites, as it has repeatedly in our country, injustice and perhaps criminal activity.  Is the failure to provide justice to one individual or a group just the price we must pay to keep the nation secure? The judicial power to grant or deny justiciablity without indepth review or development of secret facts contravenes basic tenets of our open courts and our concept of liberty and justice--- but it also could result in confusion and uncertainty by managers of secret operations. Uncertainty and fear of reprisal  or condemnation breeds timidity. And timidity is an arrow in the quiver of the enemy.  An attack on American soil resulting from interference in the way intelligence operations are conducted by the judiciary or Congress would result in immediate and ferocious public backlash. The Judiciary can function only in an atmosphere of respect and comity. It is functionally dependent on the Good Will of the electorate who will follow and respect its rulings only if it is  convinced they are the result of honest, thoughtful and fair process in protection of justice and the common good. Disaster would ensue if the courts produced  Orders and Judgments that neither the President nor Congress would enforce or recognize, bolstered by an outraged public in an atmosphere of fear and insecurity. 

          What has always happened in America is that the tug and pull of logic, politics and law results in a shared concensus of what will work fairly.  A sensible, secure, predictable, and consistent system of litigation of claims  or discovery which rely on state secrets must be created to deter the real risk of cover-up of criminal, tortious or otherwise illegal activity. Congress is already at work, debating and attempting to craft a State Secrets Act. The ad hoc decisional regime of the courts will not work--- and the peremptory exclusional position of the President may not be politically possible in an era of supposed “transparency.”

          At the same time, there must be a wide-spread recognition that robust, aggressive and imaginative intelligence activities are absolutely vital to our national interest and personal security.  Operations and strategies cannot and will not be conducted in an atmosphere of trepidation or after-action litigation.  An Intelligence Officer on a mission with a compulsory lawyer in tow electronically or metaphorically  is not only a contradiction, but an engraved invitation to our enemies.

 

                              State secrets privilege

 

          The coauthor spent an entire career with the Central Intelligence Agency operating under cover protected by a well defined veil of absolute secrecy. Without the ability to operate in complete secrecy, the Intelligence Community would be rendered useless. Today, the inviolability of the secrecy veil is subject to question, and the rules of engagement are giving pause to America’s Clandestine Service at a time when timidity is an arrow in the quiver of the Enemy.

           The state secrets privilege generally allows the Executive Branch  to refuse  to produce documents or give over evidence or testimony to any court, any citizen or any legislator  on the grounds that the evidence is secret or may lead to the revelation of secret information that would harm national security or foreign relations interests if disclosed.  Moreover, no lawsuit which requires state secret information to maintain it may be brought over the objection of the government. The Executive Branch regards the state secrets privilege as a justiciability bar and the Courts almost always agree.

                   Rarely does a  court  ever order the Executive Branch to reveal, over its objection, information that is classified “secret” or above.  Even when the government has negligently disclosed information, courts have not allowed the opposing side access  or permission to publish classified information when the government objects. Even when the basis of the government’s objections or position is clearly suspicious or fallacious, the courts have not required or permitted disclosure of classified material.  The state secrets privilege is almost always successful. Moreover, it is rare that a court will even review classified material in camera, almost always relying on the good faith of the government to truthfully mount the privilege and candidly represent the facts. This unequivocal privilege is now under substantial attack.

 

          History of the state secrets privilege

 

          The state secrets privilege in the United States is the progeny of the Common Law.   The power to hold secrets, like the power to conduct affairs of state, was the undisputed right of the British Crown.  Since the Crown always operated in the public interest or was always deemed by itself to do so, and since secrets were held only to benefit the realm and its citizens, the Crown’s right to protect its secrets was inviolate, and was unquestioned by Parliament. With the transfusion of the Common Law into the gene pool of the new American legal  and political systems, it was commonly understood that the state secrets privilege was a hereditament of the Executive Branch, as administrator of the government, and the conductor of state affairs.

          It has been said that the Trial of Aaron Burr for treason solidified the State Secrets Doctrine in the newly erected Executive Branch. While that characterization is not legally accurate, the trial is indicative of the early  common understanding of the issue.  Having been charged by the government, Aaron Burr sought to subpoena from President Thomas Jefferson letters to the President from  former Burr confidant General Wilkerson which Burr said would shed light on his defense. Burr petitioned the Judge, who happened to be Justice John Marshall.

          At issue was the collision between the Judiciary and the Executive. If Marshall had ordered the letters  produced and the President ignored the subpoena, a major constitutional crisis would ensue. On the other hand, if the President succumbed to the Subpoena and produced what could be considered secrets of the state, the Judiciary could be used  forever as a foil to uncover and disclose in any relevant case, state secrets—obliterating the concept, emasculating the President and dooming the nation’s security. Indeed, in the first known case of “gray-mail”, Aaron Burr counted on the conflict to free him.

           President Jefferson avoided the conflict by agreeing to voluntarily produce, for the benefit of the justice of the situation, relevant documents. But in his response letter to Justice Marshall, Jefferson  laid out the State Secrets Privilege Doctrine, stating that the President reserved the right, “independent of all other authority” to determine what papers, coming into the care, custody and control of the President, the public interest permits to be disclosed and to whom. This first expression of the state secrets doctrine laid out the following  elements of the Privilege:

1.     The Privilege is designed to serve the Public Interest.

2.     The President determines the Public Interest.

3.     The President reserves for himself the right to make this determination without interference by any other Branch.

4.     The President determines what secrets will be disclosed and to whom.

          Interestingly, this formulation is precisely the description of  the Crown Privilege Doctrine laid out almost 200 years before. Moreover, it is  also the doctrine underlying the “Unitary Executive President” hotly debated today, over 200 years later. It is a doctrine formulated by the interpretation by the Executive Branch of its implied Article II Powers.

          The political contest between the Jeffersonians and the Federalists, which resulted in the creation of the implied  power of Judicial Review announced  by Justice John Marshall in Marbury vs. Madison, was to play a dramatic role in  the terms of custody of state secrets by the Executive  Branch over the next two centuries.  Marbury presented to the young Supreme Court a contest between the Executive and Legislative Branches over the legality of the appointment of federal commissioners. The Court determined that its role in government was to provide Judicial Review of such contests and to be the sole and final arbiter of issues presented to it in appropriate cases. It was a gigantic grasp of power and responsibility, which it assumed by implying that the Constitution, while not literally giving it such authority,  could not be construed otherwise.  The doctrine is at the heart of a burgeoning constitutional crisis brewing today.

          Five decades later, and soon after the Civil War, with the Union in shatters and the federal government rapidly gaining power, the Supreme Court  was presented with a small case of monumental future importance. In  Totten vs. United States, the Court was squarely faced with a conflict between normal jurisprudence and the exceptional concepts implicated in a case involving state secrets. Totten involved a compensation claim for espionage services.  A personal representative of  William A. Lloyd’s estate claimed that President Abraham Lincoln had retained LLyod  to spy for the Union and that the government then failed to pay him the agreed compensation. The Court rejected the claim, holding  that alleged contracts based on secret agreements are unenforceable. If the agreements are made in secret, the very disclosure of the secrecy would be a breach, barring suit.  And for good measure, the court laid out the principle, followed ever since, that “public policy” forbids the maintenance of an action in any court, the prosecution of which would inevitably involve the disclosure of state secrets.

 

          In the 20^th Century, as the United States ascended in international power and influence, the practical exigencies of matters of state fertilized the Executive Branch, which increasingly grew exponentially in power and size. Moreover, the Civil War, World War I, the passage of the Internal Revenue Act, the Great Depression, and World War II transformed the central Federal Government into a growing, mostly unchallenged, monolith of the concentration of power.  In matters of national security, the two other Branches yielded almost without question to the judgments of the President. For example, during World War II, when the President determined that 150,000 citizens “might” pose a threat—the Court unhesitatingly acceded to the creation of prison camps and  the incarceration of these loyal citizens-- many of whom were children---without trial or bail.

          The Cold War posed the next challenge to the ascendancy of the United States and provided the platform for the creation of the Unitary Executive. Since the country faced an awesome, powerful foe with a frightening weapon and delivery system,  it aggressively focused its intelligence and military arsenal on that Enemy. Moreover, a regime of secrets and their custody and care had been carefully constructed through two World Wars. The Office of Strategic Services morphed into the Central Intelligence Agency.

  When a B-29 war plane crashed in 1948 in Georgia, killing the crew and all occupants, the death benefits lawsuit which ensued was defended by the Air Force with a stone-wall. The Air Force refused to produce in court the accident report and details, even after Court Order, claiming that the aircraft was on a secret mission. Indeed, the Air Force asserted the precise formulation of the state secrets privilege formulated by President Jefferson, contending that the courts must accept, without question, the determination of the Secretary of the Air Force as to non-disclosure.

          When the case, Reynolds vs. United States, made its way to the Supreme Court, the state secrets privilege as formulated by the Air Force, was squarely recognized  and affirmed by the Court. Once again the Court yielded to the responsibility of the President to conduct war, even a cold one,  and to preserve the nation’s  secrets. While the Court held that the privilege must be formally raised by the Executive and determined by the Court, it  warned the nation’s judiciary that such determination must be made “without forcing a disclosure of the very thing the privilege is designed to protect.”  The Court would not, however, sanction a policy of automatic disclosure in camera to the presiding judge.

          The holding of the Court in Reynolds in 1953 has been the latest direct analysis by the Court on the state secrets privilege. What is ironic is that the “secrets” withheld  in 1949 were ultimately and recently disclosed--- on the  world wide internet. The accident report concerning the B-29 StratoFortress made its way finally out by disgorgement of massive documents of the era by the government. The report revealed that the cause of the accident had been gross mismanagement of the maintenance of the aircraft---having nothing to do with national security. It was just a cover-up, one of many of which have been uncovered in judicial, legislative and journalistic excavations of Executive stone-walls.

          No Congress has ever passed a law expressly approving the state secrets doctrine. Congress has certainly legislated in the area often and recently, codifying certain aspects of the privilege. But it has always respected the President’s privilege, which is as implicit as is the doctrine of Judicial Review or the Oversight jurisdiction of Congress.  Indeed, the Provenance of the  Presidential state secrets doctrine is now as pristine as Spanish Land Grants are in the chains of title of Florida real estate. It is expressed in various forms, usually by Executive Order. Various classifications of information under the care, custody or control of the Executive Branch have been specified. Information is either “confidential”, “secret” or “Top secret”. In practice, however, there are levels of even “top secret” information, restricting the most sensitive information to a very limited number of trusted  individuals--- almost none of whom are elected officials. Most information is compartmentalized and shared only by “stove-pipe” communication to vetted individuals on a  “need to know” basis. Publication of this information may be done only with the express written permission of authorized officers of the government. Even publications by former officials are frequently reviewed to insure that classified information is not intentionally or unintentionally published. Requests  to the government under the Freedom of Information Act are reviewed to insure that secret information is not disclosed. 

                    America’s secrets cover a wide spectrum--sensitive diplomatic communications, covert surveillance, political priorities and views, military secrets, strategically important inventions, results of clandestine collection efforts, analyses, consultations, scientific and criminal investigations, and many other areas. Today, America classifies and secretes much more information, on many more subjects, at the behest of many more government officials than ever before. Indeed, so great has the explosion in classification become evident, that the Federation of American Scientists has decried the direct and collateral effects of overclassification. A consensus has emerged that the instinct to classify is stifling important scientific investigations and hurting industy.

                   With the rapid growth of secrets has come the rapid use of the state secrets privilege, as contests, in various contexts, have erupted over the use of the privilege as both a shield and a sword by the government.

                    Various scandalous situations over the intervening years since the Court decided Reynolds have raised public, and therefore, political hackles-- questioning the carte blanche  legislative and judicial treatment of the state secrets privilege. While countless secret transactions, diplomatic communications,  risky operations,  and espionage missions occur without blemish every day in the Intelligence Community and in America’s vital interests, a few disasters percolate  yearly out  of the stove-pipes and into the public realm. Sometimes, they result in real or theatric legislative outrage. For example, the House Permanent Select Committee on Intelligence  has increasingly used Congress’ check book as an implicit right of oversight to poke into the intentionally dark corners of the Intelligence Community. The Federal Intelligence Surveillance Court and the Office of National Intelligence, for example, grew out of a recent political backlash .

           In the present era, faced with the reality of dozens of scandals and abuses of the state secrets privilege, the Judiciary has increasingly questioned its  subsidiary, submissive role in the state secrets area. While recognizing that it simply does not have the expertise nor the personnel or budget to review securely the evidence relevant to a normally justiciable case, it has nevertheless begun to aggressively delve more and more into the area.

          Just as importantly, courts are more reluctant each year to deny access to the courthouse to litigants who present prima facie  bona fide claims arising out of what appear to be suspicious fact patterns. Indeed, so frustrated has the judiciary become with denying standing to bona fide disputes on grounds that no remedy is available, that the Court in Bivens vs.Six Unknown Named Agents, created an implied remedy out of whole cloth. The Court determined that federal “common law” theories of action in fact existed and allocated humongous power to the courts to expand exponentially the right to sue under circumstances which, in the previous 200 years, would have been unthinkable.  Bivens actions are now being used by all manner of litigants, secret agents or not, to drag the government dirty laundry into Chambers. Furthermore, the Courts are increasingly used by organizational litigants to score political or policy points , affect the direction of foreign policy and, of course , drag out legitimate state secrets to the Media .

         

          Clearly, the Executive Branch, the Judiciary and  Congress are on a collision course leading to a Constitutional crisis. But President Thomas Jefferson and President Barack Obama are joined at the hip on the issue of state secrets. Jefferson warned that the right to disclose state secrets was an incontestable, exclusive privilege of the Executive Branch. The privilege could not be invaded by the Judiciary or the Legislative Body, except by invitation or acquiescence of the President. This was clearly the view of President Bush.  To the surprise of many observers, President Obama took the Jeffersonian/Bush view in Mohamed v. Jeppensen Dataplan, Inc. filing briefs on the issue identical to those filed by the Bush Administration. The initial panel of 9^th Circuit Judges pushed back, holding that the state secrets doctrine was not inviolate and that the judiciary will play an important Judicial Review role. Presently, the entire 9^th Circuit has decided to rehear the case, which has now been argued and submitted to it.

          The issue is now clearly joined from Langley, Virginia to Capitol Hill to every federal appellate circuit in the land. How can the burgeoning Intelligence Community operate effectively with lawyers, judges and politicians in every black bag?  How can a President fight wars or conduct delicate, secret operations if every disgruntled operative  or political group can launch an action in court?  Moreover, what penetration opportunities are presented  to our very talented, well-financed and determined adversaries when secrets and secret operatives are the subject of court filings?

           On the other hand, our system of government is different than all others. The “government” is not just the Executive Branch. Power is shared in our system. Who says that an Executive Branch beauracrat is more trustworthy than one from the Judiciary or Congress?  After all, hundreds of treasonous “trusted” officials and employees have been caught, tried and imprisoned. To date, no Judge or staff member has been arrested spilling the beans. Not one Senator or Representative has been caught handing over secrets, caught by a “honey-trap” espionage operation or blackmailed by the enemy.

          But if the Federal Judiciary, using its now established power of Judicial Review accepts the invitation of countless litigants to review claims based on state secrets, how will it handle the cases? Can it competently decide for itself that the decision of the Intelligence Community to secure or secret certain information from the public is wrong or made in bad faith?  Should it appoint outside experts to review the decisions of the Intelligence Community party which is before it?  In the real world of the Intelligence analysis mosaic, can  a judge make solid determinations, contrary to those whose profession it is to see through thousands of other pieces of compartmentalized information? Should a judge question the credibility of the representations of a government department when its determination is question by a litigant? How can it be said that a Judge’s decisions on the importance of protecting a state secret are any better than the expertise an action- experienced intelligence professional?

          Rarely have the Branches collided so directly that a crisis has resulted. But the stakes in this power struggle are huge. The absolute power to withhold information relevant to a person’s or Congress’s legitimate remedy invites, as it has repeatedly in our country, injustice and perhaps criminal activity.  Is the failure to provide justice to one individual or a group just the price we must pay to keep the nation secure? The judicial power to grant or deny justiciablity without indepth review or development of secret facts contravenes basic tenets of our open courts and our concept of liberty and justice--- but it also could result in confusion and uncertainty by managers of secret operations. Uncertainty and fear of reprisal  or condemnation breeds timidity. And timidity is an arrow in the quiver of the enemy.  An attack on American soil resulting from interference in the way intelligence operations are conducted by the judiciary or Congress would result in immediate and ferocious public backlash. The Judiciary can function only in an atmosphere of respect and comity. It is functionally dependent on the Good Will of the electorate who will follow and respect its rulings only if it is  convinced they are the result of honest, thoughtful and fair process in protection of justice and the common good. Disaster would ensue if the courts produced  Orders and Judgments that neither the President nor Congress would enforce or recognize, bolstered by an outraged public in an atmosphere of fear and insecurity. 

          What has always happened in America is that the tug and pull of logic, politics and law results in a shared concensus of what will work fairly.  A sensible, secure, predictable, and consistent system of litigation of claims  or discovery which rely on state secrets must be created to deter the real risk of cover-up of criminal, tortious or otherwise illegal activity. Congress is already at work, debating and attempting to craft a State Secrets Act. The ad hoc decisional regime of the courts will not work--- and the peremptory exclusional position of the President may not be politically possible in an era of supposed “transparency.”

          At the same time, there must be a wide-spread recognition that robust, aggressive and imaginative intelligence activities are absolutely vital to our national interest and personal security.  Operations and strategies cannot and will not be conducted in an atmosphere of trepidation or after-action litigation.  An Intelligence Officer on a mission with a compulsory lawyer in tow electronically or metaphorically  is not only a contradiction, but an engraved invitation to our enemies.