The State Secrets Problem

Introduction

American courts have been designed to ensure that the truth comes out. Trials are conducted with evidence and discovery, and the ability of parties to the suit to challenge the government's position is paramount. But how does the court decide a dispute in which the government claims that the very evidence required to establish wrongdoing would itself be injurious to the national security?

This dilemma forms the basis of the state secrets privilege. The privilege provides that the federal government can keep information from a lawsuit, if the evidence sought or disclosed would risk revealing military or diplomatic secrets. The Supreme Court first recognized the privilege in the case of United States v. Reynolds (1953). Its lineage traces back to American and English law.¹

How can the courts determine whether the government has engaged in some unlawful conduct if the evidence necessary to establish such a claim is itself a state secret?

The Origins of the Privilege

The origin of the modern state secrets privilege doctrine lies in the case of United States v. Reynolds, which dealt with the crash of a military aircraft in 1948 that killed several civilians and members of the Air Force. The widow of three civilian passengers brought a tort action against the federal government under the Federal Tort Claims Act. During discovery, they sought the government's accident report, which the government refused to produce on the basis that it contained information concerning secret electronic equipment being tested on the plane.¹

The Supreme Court recognized that there existed a federal privilege to protect military and state secrets. However, the Court placed certain limitations on the scope of the privilege. The privilege was a governmental privilege that had to be asserted by the head of the appropriate federal department and was "not to be lightly invoked."¹ Most importantly, the Court noted that it was for the courts to determine whether or not the privilege applied in a particular case, not the executive branch.

Therefore, the existence of the privilege did not mean that the government could simply assert the claim and walk away; the government still had to convince the courts that the evidence was properly classified and that the secrecy was necessary to protect national security.

The Evidentiary Privilege

The privilege is unique in that it relates to evidence, rather than the legality of the government's conduct.

A plaintiff could have a valid legal claim, and the government could have the evidence that proves the claim, but the plaintiff may ultimately be unable to use that evidence to prove his case. In other words, the government may have the evidence, and the plaintiff may have the law, but the plaintiff will be unable to obtain justice, if the evidence is not available for the court to consider.

The Supreme Court has recognized that the privilege is supposed to protect information, not the government.¹ That principle is particularly important in lawsuits in which the plaintiffs allege that the government officials committed some sort of misconduct.

Totten and the Categorical Bar

There is another doctrine, even more restrictive, called the Totten bar. In the case of Totten v. The United States (1875), the Supreme Court declined to exercise jurisdiction over a lawsuit brought by the estate of a spy who claimed that he had an agreement with President Abraham Lincoln to conduct espionage for the Union during the Civil War.²

The Supreme Court held that "a suit cannot be maintained in any court of this country, in any tribunal having jurisdiction of the subject-matter, for the recovery of damages for a breach of confidence respecting a secret service of espionage." In other words, the mere fact that the relationship was a secret espionage relationship was sufficient to bar the lawsuit.

This doctrine is different from the one in Reynolds, where the issue was the secrecy of the evidence. Here, the issue was the very subject matter of the lawsuit. A similar principle applies today, that even if the court is willing to hear a particular case involving some classified evidence, there may be cases in which the claim itself is so intertwined with the issue of secrecy that it cannot be heard in court.

Why Courts Need the Privilege

The government has a good argument for why the privilege is necessary. Its intelligence operations require secrecy; the revelation of informants, military capabilities, surveillance techniques, diplomatic contacts, and sources could put people in danger or compromise national security.

The courts are not designed to be an intelligence-gathering agency. In determining whether or not a statute has been violated, a judge may be fully qualified to interpret the law, but may lack the expertise to assess the potential consequences of the disclosure of classified information.

Accordingly, the courts recognize that there are some things that are more valuable kept secret, rather than disclosed. Without such a privilege, litigation risks becoming a way of getting the government to disclose information that it would rather keep secret.

The Accountability Problem

However, the existence of the state secrets privilege presents a problem of its own. The executive branch could potentially use the claim of national security to keep embarrassing evidence from the courts. If the executive branch controlled the information and could keep it from the courts, the system of judicial review would fail at the very moment when it is most needed.

This dilemma was particularly acute in litigation concerning alleged CIA rendition and interrogation programs. In Mohamed v. Jeppesen Dataplan, Inc. (2009), the plaintiffs brought a tort action against Jeppesen, allegedly for its part in the CIA's extraordinary rendition program. The Ninth Circuit ultimately dismissed the case, because the court deemed that the mere act of litigating the case would reveal state secrets.³

It is important that the court understood the gravity of the plaintiffs' allegations; nevertheless, applying the doctrine of state secrets privilege, the court was compelled to dismiss the case, because the government could not litigate the case without divulging national security information.

Who Should Decide?

The difficulty with the separation of powers is that the executive branch has more access to national security information, and the judiciary branch has the responsibility to hear and decide the disputes. If the executive branch were to have absolute power to determine when a legal dispute may or may not be heard in court, the system of judicial review would be rendered virtually useless. On the other hand, if the executive branch were to assert its claim of national security and the courts were to overrule it, the possibility exists that the courts could inadvertently reveal information that the executive branch had determined was too sensitive to be made public.

The case of Reynolds attempted to solve this conundrum by asserting that the courts retained the ultimate authority to determine whether or not the executive branch had properly asserted the privilege, while at the same time acknowledging that, in order to make that determination, the courts would not be privy to the same information that the executive branch possessed.¹ It is a good solution to a difficult problem; however, it is not perfect.

The Reynolds Problem

The history of the case of Reynolds complicates the issue further. Years after the case was decided, classified documents were declassified, revealing that the government had not actually been keeping secret the information that it claimed was a state secret.

The government had maintained that the reports contained information on secret electronic equipment, but in fact they contained information on the mechanical condition of the aircraft.⁴

This development prompted renewed criticism of the privilege. It may not have been obvious that the government abuse the privilege, but it certainly demonstrated the danger of allowing the government to control the dissemination of information without judicial oversight.

The Modern Balance

Today, the problem is more difficult than it was in 1953, because the nature of national security has changed. Current national security threats often involve electronic surveillance and cybersecurity; intelligence operations may involve satellites, espionage, and the like, and the government may possess volumes of classified information relating to national security threats. But at the same time, there are more cases in which the courts are asked to determine whether the government acted properly in dealing with those threats.

One potential solution is that courts can sometimes examine classified information, without making it public. Accordingly, a court can sometimes review the issues in a case, if it determines that the information is classified, but the government may be willing to litigate the case on a confidential basis, or the court may be able to determine that the issues of the case are not properly before it.

Nevertheless, no solution completely resolves the dilemma. Sometimes, the mere fact that something is a secret is sufficient to keep it from being disclosed, even if the fact that it is a secret is not itself a secret.

Why It Matters

The State Secrets Problem is an important issue, because it is an illustration of how the executive branch and the judiciary branch must work together to maintain the system of checks and balances. The government must have the ability to keep information secret, if the disclosure of that information would be harmful to the country.

It must also be possible for courts to determine whether or not the government followed the law in reaching whatever decision it made, but if the government can keep the evidence secret, it can avoid judicial review altogether.

Therefore, the state secrets privilege presents a problem for the judiciary branch, because it requires the courts to serve as judges of the lawfulness of the government's conduct, even when the government refuses to submit to judicial review. That is a difficult position for the courts to be in, but it is also a necessary one.

Conclusion

The state secrets privilege exists, because the government has legitimate reasons to keep information secret. However, the government must also be held accountable for its actions. The case of United States v. Reynolds established the principle that the government can keep evidence confidential, if the disclosure of that evidence would reveal military or state secrets. The case of Totten established the principle that in some circumstances, the government's claim of national security is so intertwined with the subject matter of a lawsuit that the lawsuit cannot be heard in court.¹ ²

Therefore, the problem lies in finding a way to keep the government's secrets, without allowing the government to hide its misconduct behind secrecy. The government must sometimes keep secrets, courts must sometimes defer to the government, but there are limits to that deference.

1. United States v. Reynolds, 345 U.S. 1, 7-11 (1953). (law.cornell.edu)

2. Totten v. United States, 92 U.S. 105, 107-08 (1875).

3. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081-92 (9th Cir. 2010) (en banc).

4. See, e.g., Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case, 19 J. Nat'l Sec. L. & Pol'y 1 (2019), discussing the later discovery that the disputed accident reports did not contain the information the government had originally claimed they contained.