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The Truth About Secrets By: Adam J. White
Weekly Standard | Thursday, June 01, 2006

VIRTUALLY EVERY ASPECT of the war on terror has been met with a lawsuit. Recently the Center for Constitutional Rights (CCR) and the ACLU sued the federal government over the NSA's surveillance of international phone calls involving persons inside the United States. They seek court orders ceasing and disclosing the surveillance.

Last week, the Bush Administration asked the courts to dismiss the suit pursuant to the State Secrets Privilege, a doctrine under which the courts decline to require the disclosure of evidence involving secret national security programs, often resulting in outright dismissal of the cases. (A redacted version of the government's motion is available here.)

CRITICS HAVE CHALLENGED the legitimacy of the State Secrets Privilege on a number of grounds: that the privilege was a discredited relic of the Cold War; that it was born not of U.S. law but rather of Britain's monarchy; that it is "undemocratic." None of these criticisms withstands scrutiny.

The history of the State Secrets Privilege. In attacking the Bush administration's motion, the Wall Street Journal reported that "[t]he state-secrets privilege stems from the Cold War." So did the Washington Post. As did Shayana Kadidal, one of the CCR attorneys leading the legal challenge to the NSA program, who cited U.S. v. Reynolds (1953) as the privilege's foundation.

It is true that in U.S. v. Reynolds the Supreme Court held that the Truman and Eisenhower Administrations could not be forced to disclose certain Air Force accident reports--and this established the modern multi-step process for successful invocation of the doctrine. But the privilege's roots long predate the 1953 case. Twelve years earlier, then-Attorney General Robert Jackson explained in an official opinion letter that judicial recognition of the State Secrets Privilege was no new invention:

The courts have repeatedly held that they will not and cannot require the executive to produce such papers when in the opinion of the executive their production is contrary to the public interests. The courts have also held that the question whether the production of the papers would be against the public interest is one for the executive and not for the courts to determine. [emphasis added]

Among the Supreme Court and lower court cases dating back to 1803, Jackson cited Chief Justice John Marshall's opinion in the 1807 treason trial of Vice President Aaron Burr, wherein Marshall recognized that a presidential privilege could prevent litigants from securing evidence.

Also among Jackson's citations was Totten v. U.S., a case predating Reynolds by over 75 years. There, the Supreme Court flatly refused to let proceed a claim against the government arising from the plaintiff's alleged contract with President Lincoln to spy on Confederate forces: "It 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."

Among those confidences, the Court declared, were those government confidences necessary to the proper functioning of the national security apparatus. The Supreme Court recognized the continuing validity of Totten as recently as last year, in Tenet v. Doe.

The reason Kadidal and other Bush administration critics tie the privilege to Reynolds is because, they argue, recent developments show that the privilege was abused in Reynolds. In 2000, the Reynolds secrets were declassified and, according to critics, they were shown to contain no secret information. But this criticism misses the point: The government sought to protect this information in 1953 because the mission itself was "highly secret," and that "any disclosure of its mission or information concerning [the aircraft] would be prejudicial to [the Air Force]." Critics today may look at the unclassified information and see nothing noteworthy, but the issue in Reynolds was the value of the information in 1953, not 2005. The Court's deference to the Air Force in 1953 was justified both then and now.

The grounding of the State Secrets Privilege in American Law. Another criticism of the State Secrets Privilege is that it is grounding in British, rather than American, law. In the words of CCR's Kadidal, "[e]ssentially our Supreme Court imported the state secrets privilege from British law." (Or, as he blogged elsewhere, "Conservatives, take note: IT CAME FROM FOREIGN LAW!") The suggestion is that because the privilege is the legacy of monarchical rule, it fails to pay due respect to the coequal legislative and judicial branches' power to supervise the executive.

But this view also stems from the misconception that the privilege originates with Reynolds. Reynolds cited a variety of U.S. cases (including Totten and Burr) and afforded British law only a couple of mentions.

Reynolds noted that a version of the British privilege received "authoritative expression" in the Burr trial, but there Marshall himself recognized "the many points of difference which exist between the first magistrate in England and the first magistrate of the United States," and he calibrated his analysis accordingly, as have the myriad subsequent cases. To suggest that the American version of the privilege was taken from British law is no more or less accurate than saying that any aspect of American law in 1806 was taken from British law. By the time the Court heard Reynolds, the privilege was as American as apple pie.

Is the State Secrets Privilege "Undemocratic"? Kadidal charges that the privilege is "undemocratic," but such criticism turns the nature of litigation and national security on its head.

U.S. courts afford the individual an awesome power: the opportunity to wield the very power of government against his opponent, even when that opponent is the government itself. Nowhere is this more clear than in litigation seeking the vindication of rights, where elections are irrelevant.

But the courts are well aware that abusive litigation of national security issues could (to again quote Robert Jackson) "convert the constitutional Bill of Rights into a suicide pact." To avoid this "dilemma to a free people," the courts have constructed a number of doctrines, rooted in the Constitution's provisions creating the courts specifically and the separation of powers generally, that prevent dangerous judicial usurpation of control over issues entrusted to elected leaders. These doctrines include "standing" (which bars the courthouse doors to all but those who are actually injured by government action) and "the political question doctrine" (which instructs the courts to dismiss cases inherently unfit for judicial resolution), among others. The State Secrets Privilege is yet another one of the constitutional and pragmatic safeguards against inappropriate judicial involvement in matters not properly resolved by the courts.

Such a safeguard is needed nowhere so much as in the nation's self-defense. In the CCR complaint, the plaintiffs' request is nothing less than that the court "enjoin any further such warrantless surveillance" and order that the government disclose all surveillance of their communications. For six plaintiffs to demand that the elected government cease a needed surveillance program is the epitome of undemocratic action.

THE STATE SECRETS PRIVILEGE is neither novel, nor undemocratic, nor foreign. It is a democratic principle deeply rooted in our national experience. And just as it protected national secrets of the Civil War and Cold War, we can only hope that it will continue to serve the nation in the war confronting us today.

Adam J. White was recently a clerk on the U.S. Court of Appeals for the D.C. Circuit. His article on Justice Jackson's draft opinions in the Korean War-era Steel Seizure Cases will appear in the Albany Law Review later this year.

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