Does Justice "Need to Know"? Judging Classified State Secrets in the Face of Executive Obstruction.

• Author: Akremi, Faaris
• Position: NOTE

Table of Contents Introduction I. Sketching the Contours of the State Secrets Privilege A. The Origins of the State Secrets Privilege 1. Early years 2. Canonization 3. Modern trends B. The Nature of the State Secrets Privilege II. Judicial Tools for Resolving State Secrets Disputes A. Relatively Established Tools: In Camera and Ex Parte Review B. Judicial Innovations in State Secrets Adjudications 1. Special masters 2. Expert witnesses 3. Security-cleared counsel III. Security Clearance as a Veto Against Effective Judicial Review of State Secrets Privilege Invocations A. What's in a Clearance? B. Can Courts Review or Compel Determinations Related to Security Clearances? 1. Trends in judicial review of executive orders 2. Judicial action and security clearance decisions 3. Judicial action and "need-to-know" determinations 4. Balancing state secrets review with appropriate respect for the classification and security clearance system Conclusion Introduction

Some information is too sensitive to release to the public. Details of military strategies, sensitive technologies, and other state secrets could, in the wrong hands, endanger national security. The institutions of our government have recognized as much in creating the state secrets privilege. Described as "the most basic of government privileges," it serves to "protect[] survival of the state, from which all other institutions derive." (1) Though the precise provenance of the privilege is unclear, its first precedents date from early British law and the founding of the United States. (2) In practice, the privilege allows the federal government to unconditionally withhold sensitive materials from evidentiary records in court cases. (3) A majority of commentators agree that in its most basic form, such a privilege is necessary and appropriate. (4)

But the privilege is prone to misuse and abuse. (5) One can readily imagine circumstances in which the executive branch would prefer not to release embarrassing or self-incriminating evidence relevant to a challenger's case, (6) irrespective of whether that evidence actually contains state secrets. The Supreme Court recognized this problem when it admonished courts to carefully review state secrets privilege claims to "determine whether the circumstances are appropriate for the claim" and warned that "abandonment of judicial control would lead to intolerable abuses." (7)

Many believe that since 9/11, the privilege has been invoked in a manner leading to precisely such abuses. (8) Some point to the drastic increase in the frequency of the privilege's invocation as a sign of trouble. (9) Others focus on the myriad cases involving alleged human and civil rights violations in which the government claimed relevant evidence to be categorically privileged, resulting in dismissal. (10) In any event, some courts appear to have grown skeptical and, in a bid to rein in overuse of the privilege, have begun to innovate. Through the use of special masters, expert witnesses, and longstanding procedural devices such as in camera review, courts across the country have begun to more thoroughly scrutinize state secrets privilege claims. (11)

The executive branch, for its part, has sought to limit judicial review through the classification and security clearance system. (12) The clearance system is a product of longstanding executive orders that, although issued by politically diverse administrations, vest power exclusively in the executive branch. (13) Because virtually all purported state secrets are also classified, the executive has sought to use the clearance process as a bulwark against judicial attempts to consult with special masters, expert witnesses, and litigants' counsel in judging privilege disputes. (14) The executive argues that it holds ultimate authority over initial security clearance decisions as well as subsequent "need-to-know" determinations, which are made for each attempt to access classified information. (15)

This Note addresses the question whether courts adjudicating state secrets privilege disputes have the authority to compel security clearance decisions--or at least subsequent need-to-know determinations--for expert witnesses, special masters, and litigants' counsel. Part I explores the history and development of the state secrets privilege, tracing its origins through the early United States to the present day. Part II reviews the tools in the judicial toolbox for making state secrets privilege assessments. Part III analyzes the process of granting security clearances and the longstanding practice of judicial review of executive orders governing the security clearance process. It then offers an argument based on precedent and policy for measured judicial involvement in security clearance-related decisions in state secrets privilege cases. Finally, the Note concludes with thoughts on where all this leaves us.

Before I begin, a few words on the limitations of this inquiry. Although there is some reason to believe that now is the most promising time in years for effective competition of the coordinate branches with the executive, (16) I seek here only to clarify the doctrine and offer an argument for courts' involvement in some security clearance-related decisions in the state secrets context. A more thorough accounting of how and whether the coordinate branches ought to use the current political moment to check the power of the executive is beyond the scope of this Note. I seek, in other words, only to set out an argument for why justice needs to know.

1. Sketching the Contours of the State Secrets Privilege

   The state secrets privilege as it exists today is the product of a long, complicated history. Getting a handle on this history is critical to understanding how tensions between the privilege and other doctrines of government power--like the security clearance regime--should be resolved.

   A spoiler before I proceed: The precise origin of the state secrets privilege is unknown. (17) But there are clues. In their groundbreaking work on the modern state secrets privilege, William Weaver and Robert Pallitto explain that the privilege is "[s]ometimes ... characterized as pre-constitutional, even pre-legal, and as arising from the raw fact that countries have a responsibility to prevent becoming instruments of their own destruction." (18) Others assert that it is merely a common law evidentiary privilege like any other. (19) One thing is clear--the privilege as it exists today is a product of judicial action. It is less clear, however, whether that action was one of lawmaking, as with common law, or one of excavating the requirements of the Constitution. (20) This question is quite important because if the doctrine's requirement of robust judicial review of alleged state secrets is constitutionally required, it likely preempts executive-created security clearance roadblocks. (21) If, on the other hand, it is merely a matter of common law, the contest between the executive and the judiciary in effective judicial review of state secrets is a closer one (22) I return to this question in Part I.B below.

   1. The Origins of the State Secrets Privilege

      This Subpart begins with the privilege's early history, turns next to its canonization by the Supreme Court, and then addresses modern trends in how the privilege is used. Finally, with this history in mind, Subpart B below discusses the nature of the privilege.

      1. Early years

         The state secrets privilege has a lengthy and perplexing pedigree. Some scholars believe it to be an offshoot of the United Kingdom's "crown privilege." (23) The crown privilege flows from the power of the monarchy and grants the government "absolute authority ... to withhold documents from disclosure in judicial proceedings." (24) Under the crown privilege, the government's position on allegedly privileged information must be accepted by a reviewing court without question. (25) Robert Chesney identifies the nineteenth century canonization of the common law of evidence in treatises as a possible vessel for the crown privilege's passage across the Atlantic. (26) The fit is awkward, however, because of the structural mismatch between the U.S. and U.K. governments. (27)

         But observers have also noted that precursors to the state secrets privilege, such as the so-called public safety privilege, existed in the United States from the time of the Founding. (28) The earliest glimmer can be traced to the mother of all precedents, Marbury v. Madison. (29) Although best known for its holding on judicial review, Marbury in dicta also touched on issues of secrecy. Opining that Levi Lincoln, acting Secretary of State under President Jefferson, would by virtue of his post "not have been 'obliged' to disclose information 'communicated to him in confidence,'" Chief Justice Marshall set the table for the privilege. (30) Marbury's vague implications for the privilege were then clarified somewhat in United States v. Burr. (31) Prosecuted for treason, Aaron Burr sought to subpoena exculpatory evidence contained in a letter written to President Jefferson. (32) The government asserted that the information was privileged. (33) Though Chief Justice Marshall sided with the government, (34) his reasoning was more important than the ruling. Rather than relying on an undifferentiated executive privilege resting exclusively on separation of powers concerns, he noted that significant consideration should be given to whether information in the letter would "endanger the public safety" if released. (35) In so doing, he introduced for the first time a critical element of the nascent state secrets privilege: the risk to the public in disclosing purportedly privileged information.

         Then, in 1875, the Supreme Court decided its first case directly on point. In Totten v. United States, a deceased Union spy's executor sought to enforce an employment contract the deceased allegedly had with President Lincoln. (36) The suit...