State secrets and executive accountability.

• Author: Wells, Christina E.
• Position: Presidential Power in the Obama Administration: Early Reflections

INTRODUCTION

Observers have criticized the state secrets privilege for some time. Although ostensibly a common law privilege designed to prevent disclosure of certain evidence potentially damaging to national security, (1) critics argue that it has morphed into a device by which the federal government maintains nearly total secrecy about its actions. It does so, they claim, because officials have convinced courts to defer to their argument that certain evidence must be suppressed (2) or, more invidiously, because officials have convinced courts to dispose of lawsuits altogether, prior to discovery occurring at all. (3) As a result, critics argue that improper use of the privilege interferes with constitutional and statutory rights, (4) prevents public scrutiny of the government's actions, (5) and harms our system of separated powers because courts abdicate their role as a check on executive action. (6)

Critics of the Bush Administration also argued that it invoked the privilege with greater frequency and to more draconian effect than previous administrations. (7) Specifically, Bush officials sought dismissal of entire lawsuits claiming that the subject matter of the lawsuit was itself a state secret, (8) Substantial debate exists regarding the precise nature of the Bush Administration's use of the privilege. (9) Nevertheless, the Administration's tendency to assert the privilege in high profile lawsuits challenging the constitutionality of terrorism-related programs, such as the renditions of individuals to other countries (10) or the warrantless surveillance of citizens' telephone calls, (11) added to its growing public image as excessively secretive. (12)

Detractors of the Bush Administration thus looked expectantly to the Obama Administration for change. In the beginning, there was reason for hope. During the presidential campaign, Obama criticized the Bush Administration for "ignor[ing] public disclosure rules" and invoking the state secrets privilege "more than any other previous administration to get cases thrown out of civil court." (13) Nevertheless, in early 2009, the Obama Administration disappointed critics of the state secrets privilege by defending or extending the Bush Administration's assertions of the privilege. (14) Although the Obama Administration argued it had carefully reviewed earlier assertions of the privilege, invoking it "only when necessary and in the most appropriate cases," (15) critics were unappeased. Soon thereafter, President Obama promised to reform executive use of the privilege, (16) and in September 2009 the Justice Department announced a new policy regarding the state secrets privilege. (17) That policy established evidentiary and harm requirements prior to assertion of the privilege, a principle of allowing cases to move forward after assertion of the privilege except in exceptional circumstances, and multiple layers of internal review for each assertion. (18) Attorney General Holder stated that the policy was designed to "provide greater accountability and reliability in the invocation of the state secrets privilege" and to "strengthen public confidence [in the] U.S. government." (19)

The Obama policy is surely a response to the privilege's critics, whose arguments raise the specter of unaccountable officials run amok. The Administration's vision of accountability, however, departs from traditional notions of political accountability that dominate legal discourse. (20) Political accountability has generally meant "vesting (21) of ultimate decisional authority in a person who is elected." Accordingly, an official is accountable because she can be voted out of office (or is answerable to an elected official, such as the President). Accountability, however, has many different meanings and the Obama policy embraces a concept quite different from political accountability. Specifically, it adopts what this essay terms "explanatory accountability." That is, by forcing more thoughtful, evaluative invocation of the privilege, the Obama policy requires executive officials to explain and justify their privilege assertions. (22)

Unlike political accountability, which simply assumes officials are accountable because they are "selected and potentially removed from office by the voters," (23) explanatory accountability involves the expectation that officials might actually be asked to justify their particular policy decisions to others or face negative consequences. (24) Explanatory accountability thus involves accountability on a day-to-day basis and in the context of specific relationships and decisions. Although scholars have focused less on this aspect of accountability, it is nonetheless important in checking official action, (25) as the Obama Administration recognizes by attempting to establish an explanatory accountability mechanism regarding the state secrets doctrine.

To the extent that the Obama policy requires officials to justify assertions of the privilege, it shows promise. Psychological research on accountability reveals that individuals who believe they will be held accountable generally reach better-reasoned decisions. (26) Administrative officials willing to ask hard questions of each other may, in fact, more thoughtfully assert the state secrets privilege. The question remains, however, whether the new policy will actually force those hard questions and serve as a mechanism of explanatory accountability. Unfortunately, the policy's standards are unlikely to force such hard questions, as they leave too much to official discretion. Thus, the policy likely will not achieve real accountability within the Administration.

Furthermore, the new policy provides no mechanism of explanatory accountability beyond the executive branch. It never proposes to do in an actual courtroom any of the things arguably required of officials within the executive branch--i.e., prove a significant harm to national security, share evidence of such harm, or engage in detailed description of the harm. Courts cannot discern whether a privilege assertion is justified if executive officials are not required to justify it in detail. Furthermore, under existing court standards, it is unlikely that courts can, or will, routinely force explanatory accountability. Court treatment of the privilege has been notoriously squishy and deferential and judges are inconsistent, at best, in reviewing privilege assertions. The Obama policy is unlikely to improve executive assertions of the privilege absent a change in the courts' approach to the privilege. In fact, the Obama Administration's recent privilege assertions suggest as much.

Section I of this Essay reviews the state secrets privilege, focusing first on the Supreme Court's recognition of it in United States v. Reynolds, (27) and then on its subsequent application in the lower courts. Section I specifically discusses some of the common problems associated with Reynolds' formulation of the privilege. Section II discusses explanatory accountability and the extent to which the Obama policy is both promising and fails short as a mechanism of such accountability. Section III then explains why the Obama policy cannot serve as an adequate accountability mechanism. Nothing in the policy compels Administration cooperation with courts once the state secrets privilege is asserted. Moreover, the current iteration of the state secrets doctrine does not give courts adequate tools to deem judicial review a consistent mechanism of accountability. This Section concludes, however, with a discussion of proposed congressional legislation that may improve judicial review as a mechanism of accountability in cases involving the state secrets privilege.

1. THE STATE SECRETS PRIVILEGE

   1. UNITED STATES V. REYNOLDS

      Reynolds involved a negligence lawsuit against the government after the deaths of three civilians in an Air Force plane crash. Their families sought discovery of the official accident report and statements of surviving crew members, material over which the government asserted a privilege against disclosure because the plane was testing secret equipment at the time. (28) After refusing to produce the material despite the lower court's order, the government eventually appealed to the Supreme Court. (29) The Supreme Court recognized that the "privilege against revealing military secrets ... [was] well-established in the law of evidence," but acknowledged that "judicial experience" with the privilege had been limited. (30) Nevertheless, available precedents suggested clear principles that "control[led] the application of the privilege." (31) First, the privilege belongs to the government and cannot be asserted by a private party. (32) Second, a department head must assert the privilege, and then only after personal consideration of the matter to be disclosed. (33)

      Other than these clear principles, however, the Court described the remainder of the privilege as a "formula of compromise." (34) On the one hand, the privilege is "not to be lightly invoked." (35) The Court further rejected the argument that judges were powerless to interfere with executive privilege assertions. (36) "[J]udicial control over the evidence," the Court noted, "cannot be abdicated to the caprice of executive officers." (37) Rather, judges are the final arbiters as to "whether the circumstances are appropriate for the claim of privilege." (38)

      On the other hand, courts should review privilege assertions "without forcing a disclosure of the very thing the privilege is designed to protect." (39) Accordingly, lower courts should not automatically require in camera review of arguably privileged information. Rather, if "all the circumstances of the case" convince a judge that compelled disclosure of evidence poses a "reasonable danger ... to national security ... the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the...