The state secrets privilege: from Bush II to Obama.

Author:Fisher, Louis
Position:The Law - Essay

Although the state secrets privilege dates back to a poorly reasoned Supreme Court decision in United States v. Reynolds (1953), proponents of the privilege claim it can be traced much further back to the Aaron Burr trial of 1807. As will be explained, that interpretation is entirely in error, so it is best to initially explain what the privilege is intended to cover and why the Burr trial supplies no support. This article will closely analyze Reynolds and its application during the Bush II and Obama administrations.

In most trials, litigants are expected to argue publicly and vigorously in their briefs and during oral argument. These unrestrained exchanges are needed to properly inform the court, give contending parties an opportunity to present their case, and check governmental abuse. Under the state secrets privilege, a court might accept the government's assertion that certain evidence may not be publicly revealed because it would risk national security. One option is for the court to ask the executive branch to share the sensitive document in camera, with the other side excluded. However, a court may also decide not to examine the document at all, preferring to defer entirely to executive claims. In subsequent years, as with the Reynolds case, it is possible for a court to discover that a contested document not only contains no sensitive information but reveals government negligence and abuse. There is substantial risk that the executive branch will deceive the courts.

The Aaron Burr Trial

In its brief submitted to the Supreme Court in 1952 in the Reynolds case, the Justice Department cited the Aaron Burr trial of 1807 as a precedent for the state secrets privilege (U.S. Department of Justice 1952, 10-11). The department produced a list of what it called successful assertions of the evidentiary privilege, offering this as the second example: "Confidential information and letters relating to Burr's conspiracy" (ibid., 24). That statement is false, but in 1977 a federal district court, apparently guided by the Justice Department, claimed that the state secrets privilege "can be traced as far back as Aaron Burr's trial in 1807." (1) In 1989, the D.C. Circuit acknowledged that the "exact origins" of the privilege "are not certain," but nevertheless placed its "initial roots" in Burr's trial and its "modern roots" in Reynolds. (2) According to a different federal district court in 2004, the origins of the privilege "can be traced back to the treason trial of Aaron Burr." (3)

The decision in 2004 correctly noted that during the trial Burr sought access to letters that General James Wilkinson--the primary government witness against him--had sent to President Thomas Jefferson. According to the Jefferson administration, the letters "purportedly contained information" about Burr "of whose guilt," Wilkinson said, "there can be no doubt." Initially, the government objected to producing those documents, asserting it was "improper to call upon the president to produce the letter of Gen. Wilkinson, because it was a private letter, and probably contained confidential communications, which the president ought not and could not be compelled to disclose. It might contain state secrets, which could not be divulged without endangering the national safety." The government further argued that "[i]f the letter contained state secrets which it would be inconsistent with the public safety to disclose, the president could say so in the return to the subpoena." (4)

According to the Jefferson administration, even before the trial began and evidence could be introduced and evaluated, there could be "no doubt" about Burr's guilt. The private letter "probably" contained confidential information. The letter "might" contain state secrets, and if by some chance it did have state secrets its disclosure would "endanger" the nation. Why would anyone give credence to such vague, speculative, and undocumented arguments? A very important person did: President Jefferson.

In his annual address of December 1, 1806, Jefferson notified Congress that armed individuals in the Western Territory (west of the Allegheny Mountains) had planned to carry out a military expedition against Spanish possessions. (5) Representative John Randolph introduced a resolution on January 16, 1807, calling upon Jefferson to lay before Congress information he possessed on these actions by private citizens. The resolution passed, 109 to 14. (6)

On January 22, Jefferson submitted to Congress a message placed in the legislative record under the heading "Burr's Conspiracy." Jefferson cautioned that little of the evidence he possessed had been given "under the sanction of an oath, so as to constitute formal and legal evidence." (7) The letters he possessed often contained "such a mixture of rumors, conjectures, and suspicions, as renders it difficult to sift out the real facts, and unadvisable to hazard more than general outlines, strengthened by current information, on the particular credibility of the relator." To protect their reputations, he said that neither "safety nor justice will permit the exposing of names, except that of the principal actor, whose guilt is placed beyond question." (8) The "prime mover," he said was Aaron Burr. (9)

Despite the uncertainty about available evidence, the administration decided to publicly declare Burr guilty of the crime of treason, which at that time carried the penalty of death by hanging. Later, at trial, Wilkinson's credibility would be severely challenged under cross-examination by Burr's lawyers and the jury (Fisher 2015, 169-72). Chief Justice John Marshall, presiding over the trial in Richmond, Virginia, did not defer to executive branch judgments about secret evidence. In a criminal trial, with the death penalty looming, Marshall understood that Burr was entitled to see the documents that supposedly incriminated him.

As Marshall noted, any failure on his part to let Burr and his attorneys see relevant documents "would justly tarnish the reputation of the court which had given its sanction to its being withheld." If Marshall were a party to the withholding of documents needed by a defendant, "it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not entitled to the letter in question, if it should be really important to him." (10)

Upon receiving Marshall's subpoena to the executive branch, Jefferson assured the court of his "readiness" to yield documents "on all occasions whatever the purposes of justice may require." Regarding an October 21 letter he received from Wilkinson, Jefferson said that Attorney General Caesar Rodney would bring the letter to Richmond for the trial. He closed by expressing a "perfect willingness to do what is right." (11) Jefferson added that if Burr believed "there are any facts within the knowledge of the heads of department or of myself, which can be useful for his defense, from a desire of doing anything our situation will permit in furtherance of justice," those officials would be available for deposition in Washington, DC. (12)

After Burr and his attorneys were able to analyze the evidence, including the Wilkinson letter, the case grew so weak that Marshall asked the government to "consider whether they are wasting the time and money of the United States, and of all those persons who are forced to attend here, whilst they are producing a mass of testimony which does not bear upon the cause." (13) The government offered a motion to discharge the jury, but Burr objected, insisting on a verdict. The jury retired and returned with a judgment of "Not guilty." (14)

The Lincoln Spy Case

In Reynolds, the Supreme Court justified the government's decision to invoke the state secrets privilege as a doctrine "well established in the law of evidence." Among the cases the Court cited for that proposition--and standing first in line--is the Civil War spy case, Totten v. United States (1875). (15) However, the circumstances in that case apply only to a very narrow category of cases involving state secrets and have nothing to do with Reynolds or the state secret cases litigated during the Bush II and Obama administrations.

During the Civil War President Lincoln entered into a contract with William A. Lloyd to collect data on the number of Confederate troops stationed in different areas, plans of forts and fortifications, and other information that might be useful to the federal government. Lloyd was supposed to be paid $200 a month but received funds only to cover his expenses. Following his death, family members sought compensation for his services. The Supreme Court gave examples where it would be impermissible in court to disclose matters that need to remain confidential: communications between a confessor and priest, between husband and wife, what a client says to his counsel, and what a patient confides to a physician. Even greater reason existed for cases involving contracts for "secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed." (16)

Moreover, Lincoln paid Lloyd from a contingent account that Congress had placed under presidential control. (17) The Supreme Court described the service stipulated in Lloyd's contract as "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." Both Lincoln and Lloyd, said the Court, "must have understood that the lips of the other were to be for ever [sic] sealed respecting the relation of either to the matter." (18) Efforts to publicize the agreement "would itself be a breach of a contract of that kind." (19) This unique case does not justify automatically withholding state secrets from private...

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