Is the state secrets privilege in the Constitution? The basis of the state secrets privilege in inherent executive powers & why court-implemented safeguards are constitutional and prudent.

Author:Windsor, Lindsay

TABLE OF CONTENTS I. INTRODUCTION II. ORIGINS, CONTEXT, AND CONTROVERSY: BACKGROUND TO THE STATE SECRETS PRIVILEGE A. The Origins of the Privilege B. The State Secrets Privilege in Context of Other Government Privileges 1. The Bar to Litigation of Espionage Contracts 2. The Executive Privilege C. The Circuit Split on the Constitutional Basis for the State Secrets Privilege III. THE STATE SECRETS PRIVILEGE IS BASED IN EVIDENTIARY LAW AS WELL AS THE CONSTITUTION A. Implications for the Basis of the State Secrets Privilege B. The Clear Constitutional Basis for the State Secrets Privilege IV. THE STATE SECRETS PRIVILEGE AS AN INHERENT EXECUTIVE CONSTITUTIONAL POWER A. The Executive Has Well-Established Authority to Protect State Secrets B. Congressional Foreign Affairs Powers Do Not Reach State Secrets C. Judicial Review of State Secrets is Limited to its Fields of Expertise V. A CONSTITUTIONAL SAFEGUARD: REQUIRED JUDICIAL REVIEW OF STATE SECRETS INVOCATION A. Courts Should Standardize Review of Invocations of the State Secrets Privilege B. The Judicial Branch is Best Suited to Impose a Safeguard on the Privilege VI. CONCLUSION I. INTRODUCTION

On April 7, 2010, the Washington Post reported that a U.S. citizen living in Yemen had been placed on a target list of terrorists that the U.S. military and the CIA are authorized to kill. (1) This individual, Anwar al-Aulaqi, was the reported leader of al-Qaeda in the Arabian Peninsula and was tied to a number of terrorist acts against the United States, including the Christmas Day terrorist attempt, Major Nidal Hasan's shooting at Fort Hood, and other terrorist acts. (2) On September 30, 2011, al-Aulaqi was driving in northern Yemen with another American citizen, Samir Khan, when armed drones fired Hellfire missiles at them, killing them both. (3)

After the Post's initial report in 2010 and before al-Aulaqui died, his father filed a complaint against the U.S. government, challenging the unilateral decision to authorize the targeted killing as a violation of due process and other constitutional rights and seeking an injunction that would prohibit the government from using deadly force against his son. (4) In its reply, the government asserted the state secrets privilege and argued that the necessity of protecting state secrets information foreclosed litigation of al-Aulaqi's claims. (5) Without reaching the state secrets privilege, the District Court for the District of Columbia, on December 7, 2010, dismissed the case on grounds of standing and based on the political question doctrine. (6)

This case is the most recent invocation of a long-established government privilege which frequently results in barring all further litigation of the issue. (7) From 1954 through 2008, the state secrets privilege was adjudicated in about a hundred cases. (8) In most, but not all, the assertion of the privilege was upheld. (9) The state secrets privilege has become particularly important since September 11, 2001, because in a number of cases involving issues such as torture, (10) extraordinary rendition, (11) and domestic warrantless surveillance, (12) the Bush Administration argued that the privilege is based in inherent executive power and not subject to judicial review. (13) The Obama Administration has continued this assertion, arguing in Al-Aulaqi, for example, that the protection of state secrets from disclosure in litigation is within "[t]he ability of the Executive." (14)

Given such harsh results of invocation, one might expect a clear constitutional basis for the privilege. Instead, the question has only murky and divided answers. In the founding state secrets case, the Supreme Court declined to address the issue of whether the privilege was based in constitutional powers, and if so, which branch of the government had this authority to prevent disclosure of national security information in civil litigation. (15) The circuit courts since then have been divided on the issue, writing variously that the state secrets privilege has constitutional "implications" and "significance" based on the powers of the executive branch, (16) and that "[t]he state secrets doctrine is a judicial construct without foundation in the Constitution." (17) With such unclear direction from the courts, scholarship likewise has divided on whether there is a constitutional basis for the privilege, and if so, which branch of the government should control the exercise of the privilege. (18) Though some scholars have considered the basis for the doctrine from Constitutional first principles (19) or the impact of recent post-9/11 cases, (20) none have analyzed courts' explicit statements on the matter to evaluate the basis of the privilege in the Constitution.

This Note argues that, despite the circuit courts' and scholars' confusion, the state secrets privilege has clear basis in the Constitution as well as in evidentiary law. The Executive's powers to protect national security information encompass the state secrets privilege. While Congress could codify the privilege or amend its procedural invocation, it remains solidly within the purview of the executive branch. The Judiciary can and should exercise limited oversight of the privilege to safeguard it from abuse by reviewing the Executive's invocation to ensure state secrets are in fact at stake.

Part I introduces the origin of the state secrets privilege, places it in the context of other government privileges, and identifies the circuit split over its constitutional basis. Part II explains the argument for a constitutional basis for the privilege and the resulting implications. Part III details the Executive's inherent authority over the privilege and analyzes congressional and judicial authorities relevant to the privilege. Lastly, Part IV argues that a limited role of judicial review would safeguard the privilege and is consistent with the constitutional separation of powers.


    The state secrets privilege is a privilege of the federal government to withhold information in litigation when the public disclosure of the material would cause damage to the United States national security. (21) Its origins trace back to early Supreme Court jurisprudence affirming the Executive's power to withhold confidential communications (22) and to withhold contracts for espionage, (23) but the state secrets privilege developed into a privilege distinct from both of these based on the unique concerns raised by national security issues. (24) This section addresses the seminal case forming the modern contours of the privilege and explains its distinction from the other privileges of common historical origin.

    1. The Origins of the Privilege

      The state secrets privilege is grounded in the 1953 Supreme Court decision United States v. Reynolds. (25) The case arose when three civilian Air Force employees were killed in a B-29 military aircraft crash. Their widows brought suit under the Federal Tort Claims Act seeking damages for their husbands' deaths. (26) During discovery, the plaintiffs requested that the Air Force provide accident reports about the crash, but the Secretary of the Air Force refused, asserting that disclosure of the reports would "seriously hamper[] national security." (27)

      The trial judge then ordered the government to produce the documents for an in camera determination of whether they contained privileged matter. (28) The government declined, and the judge, taking the facts on the issue of negligence in the plaintiffs favor, entered judgment for plaintiffs' widows. (29) On appeal, the Third Circuit affirmed, holding that the claim of privilege from disclosing evidence was not within the "sole province" of the government, as the Air Force asserted. (30) Rather, it was a justiciable question to be determined by the judge, in camera and ex parte, in accordance with the rules of evidence. (31)

      When the Secretary of the Air Force appealed once more, the Supreme Court reversed, holding that when the government properly invokes the privilege, the documents are protected absolutely from disclosure. (32) The Court described the requirements for proper invocation:

      The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. (33) Further, evidence is within the scope of the privilege where "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." (34) Finding that the government's privilege was properly invoked, the Court upheld it, overruled the lower courts' view that the documents should be produced to the judge for inspection, and rejected plaintiffs' demands for disclosure. (35)

      Reynolds left open two major questions about the basis and scope of the state secrets privilege. First, the Court found an affirmative basis in evidentiary law for the privilege, but found it "unnecessary to pass upon" the "constitutional overtones" of the case. (36) The question remained unanswered as to whether the state secrets privilege is an inherent constitutional authority of the government, and if so, to which branch of government that authority belongs." (37)

      Second, the Court's reasoning was ambiguous about the scope of judicial review of the privilege's invocation and, specifically, how a court determines that the documents are state secrets without requiring their disclosure. (38) Reynolds cautioned that judicial inquiry should not include "insisting upon an examination of the evidence, even by the judge alone, in chambers." (39) At the same time, however, it argued that a showing of plaintiffs' necessity for the privileged material...

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