From the Civil War to the war on terror: the evolution and application of the state secrets privilege.

• Author: Crook, Jason A.

1. INTRODUCTION

   On a warm July day in 1861, a Union spy named William Lloyd received secret orders from President Lincoln to infiltrate the southern states on a mission to ascertain Confederate troop positions, the plans of major fortifications, and other information which would be of benefit to the United States government. (1) For his services he was to be paid $200 a month, with his findings to be reported directly to the President. (2) One hundred and forty years later in the aftermath of September 11, President Bush would authorize the National Security Agency to conduct warrantless communications surveillance on persons with alleged ties to Al Qaeda and other terrorist organizations. (3) Though the circumstances of these two actions are decidedly different, their clandestine natures both invoke the issue of state secrets and the question of how courts are to proceed when the subject of litigation is a matter of national security. Given the current geopolitical climate and the advancing sophistication of intelligence gathering, an analysis of the state secrets privilege and its practical implications is increasingly relevant.

2. THE BEGINNINGS OF THE STATE SECRETS PRIVILEGE IN AMERICAN LAW

   Although it would take some time for the state secrets privilege to develop its current scope and power, the case of Totten v. United States (4) marks the first general instance of its use in American jurisprudence. (5) As highlighted before, this case concerned a secret espionage agreement allegedly entered into between President Lincoln and William Lloyd during the Civil War. (6) Upon hearing the matter originally, the Court of Claims found that Lloyd did venture behind enemy lines where he remained for the duration of the war, and that over the course of his stay he transmitted information back to the President as directed under his contract, but that after the war's end he was only reimbursed for expenses. (7) Lloyd subsequently died and Mr. Enoch Totten brought suit on his estate's behalf to recover the compensation allegedly owed under the secret contract. (8)

   In affirming the Court of Claims' dismissal of the action, the Supreme Court recognized the power of the President to enter into such contracts, but expressed its concern with the dangers litigation of its contents might bring. (9) Writing for the Court, Justice Field held:

   Our objection is not to the contract, but to the action upon it in the Court of Claims. The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed.... This condition of the engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent. If upon contracts of such a nature an action against the government could be maintained in the Court of Claims, whenever an agent should deem himself entitled to greater or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of dealings with individuals and officers, might be exposed, to the serious detriment of the public. (10) The Court then ruled that

   [i]t may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. (11) Totten's lawsuit was dismissed not because it had disclosed confidential information, but because it had the mere possibility of doing so. (12)

3. THE PRIVILEGE EVOLVES

   Thirty-seven years later, the case of Firth Sterling Steel Co. v. Bethlehem Steel Co. (13) signaled the expansion of the privilege to encompass the power of a court to actively preclude certain testimony rather than merely allowing a party claiming the privilege to refrain from answering. After copies of secret drawings of armor-piercing projectiles were used to unlawfully obtain a patent, an infringement action ensued in which the court recognized

   [t]he disposition of the present motion is not, however, to be based upon the personal privilege of the witness through whom it is sought to introduce the drawings in evidence, but upon the ground that the topic or subject-matter of the information contained in the drawings is privileged, as constituting secrets of the government in military affairs. (14) Rather than recognizing the privilege as one based upon personal standing such as "the confidences of the confessional, or those between husband and wife," (15) Firth Sterling held that "the evidence sought to be introduced, which was excluded by the court's former order, must ... be excluded for reasons of public policy which attach to the contents of the papers." (16)

   This exclusion on the basis of policy reasons which attached to the documents on account of their subject matter marked a unique shift away from the other historical privileges which generally arose out of some form of personal relationship. (17) After the end of the Second World War, the Supreme Court had another opportunity to address the fundamental nature of the privilege through the landmark case United States v. Reynolds. (18) Shortly after takeoff on October 6, 1948, a B-29 bomber testing secret electronic equipment crashed in Waycross, Georgia killing six of its nine crew members and three civilian observers. (19) The widows of the deceased civilians then brought action against the United States under the Tort Claims Act seeking the production of the Air Force's official accident investigation report and the statements of the three surviving crew members. (20)

   Upon the plaintiffs' motions to discover the accident report, the government moved to suppress on the grounds that Air Force regulations deemed the material to be privileged against disclosure. (21) The district court then sustained the plaintiffs' motions by determining that they presented good cause for production of the report. (22) After the Secretary of the Air Force sent a letter to the court stating that "it has been determined that it would not be in the public interest to furnish this report" (23) the court "ordered the Government to produce the documents in order that [it] might determine whether they contained privileged matter. The Government declined, so the court entered an order ... that the facts on the issue of negligence would be taken as established in [the] plaintiffs' favor." (24) A hearing was set to determine the appropriate amount of damages, and the court entered a final judgment for the plaintiffs, which was affirmed by the court of appeals. (25)

   In reversing the court of appeals and the district court, the Supreme Court recognized the inherent conflict which could arise through the privilege's invocation. (26) Given the "reasonable danger that compulsion of the evidence [would] expose military matters which, in the interest of national security, should not be divulged," however, "the occasion for the privilege [was] appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence...." (27) The Court then stated:

   On the record before the trial court it appeared that this accident occurred to a military plane which had gone aloft to test secret electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission. (28) Even though the decisions of the lower courts were ultimately overruled, the Court did note that "the trial judge was in no position to decide that the report was privileged until there had been a formal claim of privilege." (29) Once the Secretary of the Air Force had filed its formal claim, though, the "circumstances indicat[ed] a reasonable possibility that military secrets were involved, [and] there was certainly a sufficient showing of privilege to cut off further demand for the documents...." (30) When a plaintiff seeks discovery and use of confidential information as part of his case, "the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake." (31)

   In addition to recognizing that the "the privilege against revealing military secrets ... is well established in the law," (32) Reynolds also refined the privilege's application by formalizing the procedural requirements for its invocation. (33) Even though "[t]he privilege belongs to the Government" and "can neither be claimed nor waived by a private party," there must first still be a "formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." (34) After this formal claim of privilege has been made, "[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect." (35)

   In each case, the showing of necessity which is made [for the plaintiff to have access to the information] will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.... [but] [w]here necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail. (36) Seventy-eight years after Totten, Reynolds had explicitly reaffirmed the...