The shadow of state secrets.

• Author: Donohue, Laura K.

INTRODUCTION I. GOVERNMENT CONTRACTORS AND STATE SECRETS A. Breach of Contract, Patent Disputes, and Trade Secrets B. Negligence, Wrongful Death, and Bodily Injury 1. Product Liability 2. Infrastructure and Services 3. Conduct of War C. State Secrets as a Litigation Strategy II. TELECOMMUNICATIONS CASES A. Executive Branch Jurisprudence and State Secrets B. The Onslaught of Litigation C. State Secrets, Judicial Independence, and Congressional Action D. State Secrets in the Aftermath III. LEGAL CHALLENGES BROUGHT AGAINST U.S. OFFICIALS AND AGENCIES A. Fourth and Fifth Amendment Violations B. Due Process, Torture, and Detention Without Trial C. Environmental Regulations D. Employment Suits E. State Secrets as a Tactical Advantage IV. CRIMINAL PROSECUTION V. THE LONG SHADOW INTRODUCTION

State secrets doctrine catapulted to prominence post-2001, as the executive responded to lawsuits alleging a range of constitutional and human rights violations by refusing to disclose information during discovery and, in some cases, requesting dismissal of suits altogether on national security grounds. (1) More than 120 law review articles followed, (2) and media outlets became outspoken in their criticism of the privilege. (3) In both the Senate and the House, new bills sought to codify what had previously been a common law doctrine. (4) And in September 2009, the Attorney General introduced new procedures for review and created a State Secrets Review Committee. (5)

Despite the sudden explosion in scholarship and other attention paid to state secrets, very little is known about how the privilege actually works. The research serving as a basis for much of the discussion focuses narrowly on published judicial opinions in which the U.S. government has invoked the privilege and the courts have ruled on it. Myriad concerns follow.

First and foremost, such analyses reveal very little about how the executive branch actually uses the privilege--who invokes it, under what circumstances it is invoked, how frequently it has been threatened, and to what end. Put simply, there is a logical disconnect between looking at how courts rule in their final, published opinions on state secrets and drawing conclusions about the executive branch's practices. (6) Second, the narrow focus on the outcome of published cases sheds little light on how the doctrine operates--how it influences the course of litigation, the range of cases in which it is used, or how parties respond, such as by dropping suits early in the process in the face of the threatened or actual invocation of the privilege.

Third, current scholarship provides a truncated view of how the courts deal with assertion of the privilege. Omitted are the many cases in which the court sidesteps the question altogether or dispenses of the state secrets questions at an early stage in the litigation. (7) Absent, too, are unreported and unpublished opinions (which constitute around eighty percent of the appellate courts' caseload), (8) as well as sealed memoranda and opinions. The resultant lack of baseline analysis makes it difficult to conclude how the judiciary treats the privilege, as well as what variation occurs between the circuits.

In addition to the narrow adherence to published judicial opinions, state secrets research is marked by a lack of detailed historical analysis. Modern state secrets doctrine is thus said to begin with United States v. Reynolds, (9) a 1953 case in which the U.S. Supreme Court formally recognized the doctrine following the crash of a B-29 bomber. The Air Force successfully blocked the widows' efforts to obtain the accident report, on the ground that its release would threaten national security. (10) Without the report, the survivors could not establish a prima facie case of negligence. Chief Justice Vinson wrote that recourse to state secrets was not to be "lightly invoked," but where formally asserted by the head of a department with control over the matter, and where a "reasonable danger" to national security existed, information could be withheld. (11) It would be up to the court to ascertain whether to inspect the information in question. (12)

Very few of some thirty pieces written prior to 1953 discuss the history of state secrets in depth, and outside of a handful of important exceptions, since Reynolds was decided there has been little historical exposition of the privilege prior to 1953. (13) This gap in scholarship has resulted in the proliferation of an Athena-like theory of state secrets: in 1953 it sprung from Zeus's forehead, with little or no previous articulation. Thus, even the authors of some of the most important work on the privilege, Professors Robert Pallitto and William Weaver, conclude that "[i]n the United States, before Reynolds, there is virtually no history with the state secrets privilege." (14) This claim is wrong. Yet it reverberates in the copious articles written on state secrets, where authors frequently repeat the incantation: Marbury--Burr--Totten--Reynolds, before focusing on the "modern era." (15) This distorted view of state secrets has crept its way into congressional reports and judicial opinions. (16) The lack of detailed research risks more than just inaccuracy--it stunts our broader analysis, such as our ability to weigh Article II versus common law assertions, our understanding of the courts' historical treatment of separation of powers, or the role of state secrets as a justiciability doctrine versus an evidentiary rule. (17) And it is emblematic of how little we really understand this doctrine.

Legal scholars highlight the difficulty of assembling more accurate data on state secrets. The government has not previously kept any master list detailing the cases in which state secrets have been invoked. (18) Any effort to assemble one would have to rely on a variety of approaches that would likely result in an unreliable data set. (19) Verification of invocation and attribution to particular administrations would require research-intensive docket searches. (20) And, even if a list were to be assembled, quantitative comparisons year-to-year hold little value as such litigation is deeply context-dependent. (21)

These commentators are correct that many of the relevant documents are difficult to obtain. (22) When found, moreover, they are often heavily redacted. (23) Docket searches are also research-intensive: 874 state secrets documents currently appear in Westlaw's Court Express electronic docket retrieval service, and an additional 100 in LexisNexis's similar Courtlink service--neither of which contain complete docket records from the past thirty years. (24) More broadly, a search of case holdings since 1790 returns some 700 cases in Westlaw and another 670 cases in LexisNexis that refer to state secrets. (25) Specific court records, such as those obtained from the U.S. Court of Federal Claims (in which a significant number of state secrets cases arise), augment these searches. (26) By supplementing the resulting documents with citations in pleadings, motions, briefs, memorandum opinions, judicial decisions, Headnote strings, legislative searches, and secondary source materials, enough material can be assembled to--at a minimum--call into question how well we really understand this privilege, and more positively, to suggest some new hypotheses for how the state secrets privilege operates.

The resulting research reveals that the shadow of state secrets casts longer and broader than previously acknowledged: more than 400 state secrets cases emerged in the aftermath of Reynolds. (27) In hundreds of additional cases, moreover, state secrets doctrine played a significant role.

Careful examination of the period from 2001 to 2009 proves particularly illuminating. Hitherto, the intense academic and public debate about the Bush Administration's use of state secrets has centered on some twenty opinions issued as of 2006, with further attention on a handful of highly visible ongoing suits in which the outcome turned on state secrets. (28) The central question has been whether the Administration quantitatively or qualitatively used the privilege differently from its predecessors.

Setting aside for a moment our limited knowledge about what actually did come before, critiques and defenses have been made too hastily, as much of the commentary came prior to the close of the Administration. (29) These analyses ignored the time it takes for such cases to work their way through the courts, attributing cases that arose under previous administrations to the current government and ignoring ongoing cases that had yet to be decided. (30) They omitted many unpublished, unreported, and sealed cases, as well as suits voluntarily dismissed. Missing too were cases in which either the government or private actors threatened state secrets, but the executive refrained from invoking it, or where the executive did invoke it, but the issue did not work its way into the final judicial opinion.

In contrast, docket searches demonstrate that, from January 2001 to January 2009, the privilege played a significant role in the executive branch's national security litigation strategy. In one case, the Administration asserted the state secrets privilege some 245 times. (31) More to the point, the government has invoked the state secrets privilege in more than 100 cases, which is more than five times the number of cases previously considered. And it is not just the executive branch that benefitted from the privilege: in scores of additional cases, private industry claimed that the state secrets doctrine applied, with the expectation that the federal government would later intervene to prevent certain documents from being subject to discovery or to stop the suit from moving forward. Beyond these, there are hundreds of cases on which the shadow of the privilege fell.

This Article thus focuses on cases working their way through the courts between 2001 and...