If you asked most Americans what the State Secrets Privilege was they either wouldn’t know or, if they did, might believe it was enacted as part of the Patriot Act or some other post-9/11 national security legislation. It is not. In fact, it’s not legislative at all. The State Secrets Privilege is a court made rule, and its use and impact are both expanding.
The State Secrets Privilege is a doctrine that allows the executive branch of the government to intervene in civil litigation, whether the government is a party to the lawsuit or not, and declare that discovery of certain evidence would involve disclosing state secrets and endanger national security.
Historically, the State Secrets Privilege can be found in British law, though it is unlike its current American counterpart. The first major American reference to protecting state secrets came in the treason trial of Aaron Burr where a letter to President Thomas Jefferson was alleged to contain state secrets. No judicial decision hinged on the issue, and no precedent was set. But, the idea hung around until 1953 when it was officially adopted by the United States Supreme Court in U. S. v. Reynolds.
The Reynolds case involved a lawsuit centered around the crash of a B-29 and the deaths of the crew. The government refused to turn over accident reports claiming that the reports would disclose the secret mission of the flight. Without reviewing the reports, the Court deferred to the executive branch, invoked the State Secrets Privilege and prevented the reports from being turned over or used in evidence. Forty seven years later, in 2000, the reports were declassified. They contained no secret information, but did contain evidence of faulty maintenance leading to the crash. It is not the only case where future disclosure showed that use of the privilege appeared to be aimed more at covering up illegal or negligent conduct than protecting state secrets.
In the first 23 years after the Reynolds decision, the State Secrets Privilege was rarely used, despite it being the height of the Cold War. From 1953 to 1976, the privilege was invoked only four times. Since then, it has been invoked approximately 70 times. Assertion of the privilege has been rejected only four times. And, the manner in which it is used has changed.
Originally, the State Secrets Privilege was carved out as an evidentiary rule. That means that a litigant could not view materials declared to contain state secrets or use that material in evidence. It has now morphed into a justiciability rule. That means that it is now used to dismiss entire cases instead of merely excluding certain evidence. The most recent example of the State Secrets Privilege being used as a justiciability bar occurred yesterday in General Dynamics v. U. S. in which the Supreme Court ordered a contract case dismissed in its entirety based on the privilege.
Not only have the courts been expanding the privilege from evidentiary to justiciability exclusion, the executive branch has also been expanding its use. Following 9/11, the State Secrets Privilege became part of the Unitary Presidency concept that sought to put the commander in chief above legal restrictions in pursuit of national security objectives. In Executive Order 13233, President George W. Bush expanded the privilege by extending it to allow former presidents to invoke the privilege to bar disclosure of records from their past administrations. President Obama has continued the use of the privilege as defined and expanded by the Bush administration.
Use of the State Secrets Privilege has been criticized along five primary lines, some of which have been alluded to already. The five are:
1. General expansion of its use.
2. Expansion of its scope from an evidentiary rule to a justiciability rule.
3. Abuse of the privilege to conceal embarrassing or illegal conduct.
4. Lack of external validation of the claim. In this context the reader should know that the actual documents are reviewed by judges in only one out of three cases. The executive branch often demands invocation of the privilege while denying the judge the right to independently review the evidence. And, judges generally comply.
5. Undermining governmental checks and balances by creating a broad exception to judicial checks on executive power.
With both the executive and judicial branches supporting and expanding the State Secrets Privilege, the issue is in the hands of Congress to address, if it is to be addressed at all. To date, reform attempts have been offered but have been unsuccessful. Those reform efforts have been relatively mild. For example, even the reformers have been reluctant to detour the move from an evidentiary rule to a justiciability rule.
With this mind, and understanding the need to preserve legitimate state secrets, here are a few reforms I’d suggest to prevent abuse, help insure justice and maintain a government of checks and balances.
• Establish a procedure for granting security clearances to certain judges at all levels of the federal judiciary.
• Require that all evidence claimed to be privileged be reviewed by security cleared judges to determine the accuracy of the executive branch’s claim and to prevent abuse of the privilege in covering up embarrassing or illegal conduct.
• Disallow use of the privilege as a justiciability bar to litigation and revert to the evidentiary rule standard allowing litigation to proceed with the secret evidence excluded.
• Where cases cannot proceed without state secrets evidence, allow cases to be tried using special prophylactic rules before a panel of security cleared judges.
• Overturn Executive Order 13233 and require that only the current administration be allowed to raise the privilege.
• Provide penalties, perhaps even criminal prosecution, for fraudulent claims of privilege particularly in attempts to cover up illegal conduct on the part of the executive branch.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.