§ 42.04 State Secrets

• Jurisdiction: United States

§ 42.04 State Secrets

Proposed Federal Rule 509 recognized a state secrets privilege,³⁷ with the government as the holder.³⁸ The proposed rule was based on United States v. Reynolds,³⁹ a federal Tort Claims Act suit against the Government involving the deaths of civilians in the crash of a B-29 airplane. The plane was testing secret electronic equipment. The Supreme Court wrote: "It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."⁴⁰Dismissal may result if the claim of privilege is upheld.⁴¹

Proposed Rule 509(c) required the chief officer of a government agency or department to assert the privilege, and the rule also provided for in-chambers procedures, including ex parte in camera inspection at the government's request.⁴² The Classified Information Procedures Act⁴³ was later enacted to deal with classified information in criminal prosecutions.⁴⁴

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Notes:

^[37] Proposed Fed. R. Evid. 509(b) ("The government has a privilege to refuse to give evidence and to prevent any person from giving evidence upon a showing of reasonable likelihood of danger that the evidence will disclose a secret of state or official information, as defined in this rule."); Proposed Fed. R. Evid. 509(a)(1) ("A 'secret of state' is a governmental secret relating to the national defense or the international relations of the United States.").

^[38] Proposed Fed. R. Evid. 509 advisory committee's note ("The rule vests the privileges in the government where they properly belong rather than a party or witness.").

^[39] 345 U.S. 1 (1953). See also Tenet v. Doe, 544 U.S. 1, 7 (2005) (distinguishing Reynolds).

^[40] 345 U.S. at 10. See also Sterling v. Tenet, 416 F.3d 338, 342 (4th Cir. 2005) (covert agent sued CIA Director for race discrimination; "Sterling's duties and those of his colleagues—and even the names of most of his supervisors and colleagues—were classified, rendering comparative proof of discrimination impossible."); Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004) ("Having reviewed the materials Defendants produced under seal, we agree...