From Crown Privilege to State Secrets¹

It is simply assumed or asserted by U.S. commentators, with little or no discussion, that the privilege had its origins in crown prerogatives in England, which certainly appears to be correct.

See, e.g., C. S. Emden, Documents Privileged in the Public Interest, 39 L.Q. R. 476, 476–77 (1023) (Crown privilege “can, no doubt, be traced to the prerogative right to prevent the disclosure of state secrets”) (1923); Conway v. Rimmer [1967] 2 All. E.R. 1260, 1263 (“Crown privilege is one of the prerogatives of the Crown.”); But see Rogers v. Sec’y of State for the Home Dept. [1973] A.C. 388, 407 (“The right to demand that admissible evidence be withheld from, or inadmissible evidence adduced to, the courts is not one of the prerogatives of the Crown.”)

Prerogatives were claimed by the crown to be beyond the reach of law, and the crown, as the “fountain of justice,” was said by a fiction to always act in the public interest.

For example: “[W]hen a statute is made pro bono publico, and the King (as the head of the commonwealth, and the fountain of justice and mercy,) is by the whole realm trusted with it.” January 1, 1616 (77 E.R. 465, 7 Co. Rep. 36 King's Bench Div. Penal Statutes)

The theoretical basis for judicial refusal to order the disclosure of requested information always was, and continues to be, preservation of the public interest. As Matthew Bacon noted in a standard text on law in the seventeenth century, “it hath been established as a rule, that all prerogatives must be for the advantages and good of the people, otherwise they ought not be allowed by the law.”

Matthew Bacon, A New Abridgement of the Law 149 (London: E. & R. Nutt, & R. Gosling, 1736).

The lack of commentary concerning crown power to withhold information may be indicative of the inability to imagine that such a prerogative would ever give rise to contention, and the apparent infrequency of its need to be exercised.

Comments with respect to the plenary power of the Crown to control official information indicate that it had a wide range, if not completely acceded to. Nathaniel Bacon noted in one case that “It may be the great Lords thought the Mysteries of State too sacred to be debated before the vulgar, lest they should grow into curiosity.”

Nathaniel Bacon, An Historical and Political Discourse of the Laws and Government of England, From the First Times to the End of the Reign of Queen Elizabeth 176 (London: 1739).

Matters came to a head in 1628 when Charles imprisoned subjects who refused to lend money to the Crown to prosecute war.

The earliest contentious discussions of crown privilege grew out of parliamentary and legal contretemps concerning the crown's power to detain citizens without showing legal cause for such detention. Although it is difficult to determine the extent, since cases were sporadic, at least some judges in the time of Charles I, and of course the King himself, believed courts could only acquire jurisdiction to bail prisoners or rule in habeas corpus through the state production of a legal cause for the detention of the prisoner in question. If the crown refused to show cause for a prisoner's detention it was argued by the crown, and seemingly accepted in law, that courts had no jurisdiction with which to act in the matter.

For example, Coke reports in the Case of the Lords Presidents of Wales and York that the court stated “the defendants, by law, may in all courts plead to the jurisdiction of the court, but how can they do so when no man can possibly know what jurisdiction they have: concerning matters of state, which are arcana imperii, it is meet they should be kept sub sigillo concilii [under seal; in strict confidence] and in secret.”

12 Co. Rep. 50, 53 (Circa 1607). Coke provides no date for the case, but Cuthbert Pepper referred to in the case as Attorney in Court of Wards, was appointed to that position by James I on July 9, 1607 (Calendar of State Papers Domestic Series: James I, 1603–1610, Vol. 28: July–December, 1607, entry for July 9. (M. Green, ed., 1857)). Pepper was dead by August 11, 1608 (Id., Vol. 35, July–August 1608, entry for August 11).

And over eighty years prior to the disputes of 1628, Binck's Case took up detention for felony and for matters of state.

35 H. 8, Rot. 33 (1544).

In addition, Magna Carta and subsequent petitions by Parliament showed crown acquiescence to the claim that no subject could be detained without showing cause in law. Paragraph 39 of the Great Charter states: “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” And in 1363 the crown tacitly admitted that it had no legal authority to order detentions by special directive. Parliament in that year petitioned Edward III “that the great Charter, and the Charter of the Forest, and other Statutes made in his time, and the time of his Progenitors, for the profit of him, and his Commonalty, be well and firmly kept; and put in due execution, without putting disturbance, or making arrest contrary to them by special command, or in other manner.”

36 Edw. III Rot. Parliament No. 9.

But Charles I put this matter into hot debate after he ordered the detention of subjects who refused to loan the crown money to prosecute war. In Darnel's Case, detainees of the crown sought relief in habeas corpus cum causa.

3 How. St. Tr. 59 (1628).

The Attorney General further showed that Lord Coke, who now argued against the King, was of a different mind when he was a judge on King's Bench. There, he and his colleagues held that “it had been resolved, that the cause need not be disclosed, being per mandatum concilii as Arcana Regni [mysteries of the crown].”

Id. at 86.

Yet Ashley demonstrated a keen grasp of the dilemma presented by a state secrets privilege, and captured this problem in his advice to the Lords in Parliament:

I conceive it to be a question too high to be determined by any legal decision; for it must needs be a hard case of contention when the conqueror must sit down with irreparable loss; as in this case [Darnel's case], if the subject prevail, liberty but loses the benefit of that state government, without which a monarchy may too soon become an anarchy; or, if the state prevail, it gains absolute sovereignty, but loses the subjects not their subjection, for obedience we must yield, though nothing be left us but prayers and tears; but it loses the best part of them, which is their affections, whereby sovereignty is established, and the crown firmly fixt on his royal head. Between two such extremes, there is no way to moderate, but to find a medium for accommodation of the difference, which is not for me to prescribe, but humbly to move your lordships, to whom I submit it.

Id.

Crown abuse of the doctrine of reasons of state to detain subjects was recognized early on, with Sir Benjamin Rudyard reportedly declaiming in 1628 that “As for Intrinsecal Power and Reason of State, they were matters in the clouds, where he [Rudyard] desired to leave them: only as to reason of state he would say, that in the latitude it had been used, it had eaten out, not only the laws, but all the religion of Christendom.”

Note 51, supra, at 91.

The crass reasons for detention in Darnel's Case were incompatible with the grand claim that matters of state justified the King's power to detain subjects without return of cause to the courts in response to habeas claims. It was apparent to all that Darnel and others were being held for the purpose to extort money out of the wealthy to finance unpopular wars and to serve as an example to others who might contemplate refusal to give over funds.

In the Petition of Right of 1628, Charles grudgingly accepted the claim that arrests and detentions without showing legal cause were beyond the crown's power. But once the problem of disclosure of matters of state was separated from warrantless detention, the English courts generally adopted a position of virtually unfettered deference to crown claims ‒ frequently noticing the continuation of prerogative power in matters concerning refusal to disclose information regarding matters of state.

In the 1688 Trial of the Seven Bishops, the court refused to require a witness to testify as to the events of a Privy Council meeting.

12 How. St. Tr. 183, 309–11 (1688).

In Bishop Atterbury's Case, the defendant attempted to examine crown employees who had opened and deciphered inculpatory encrypted communications. But the crown resisted, and the Lords found that such testimony would be “inconsistent with the public safety.”

16 How. St. Tr. 323, 495 (1723).

In The Trial of Maha Rajah Nundocomar, the court called in a secretary to Governor General Warren Hastings in India to produce books of the Council to the East India Company. Hastings instructed the secretary to refuse delivery of the books to the court, asserting that they contained “secrets of the utmost importance to the interest, and even to the safety of the state.”

20 How. St. Tr. 923, 1057 (1775).

In Moodaly v Moreton and East India Co., the East India Company refused to give over documents, with the court noting that “The defendant demurred [that they] were sovereigns of the territory; that they could not be sued; that it might be attended with bad consequences, in a political view, to discover their secrets.”

21 E.R. 425 (1785).

Yet discounting the odd exception, English courts uniformly accepted assertions of crown privilege with little inclination to investigate the grounds of those assertions. The claims of privilege were not differentiated as to their compelling natures or underlying facts, and the English courts adopted an extremely deferential response to those claims – most often treating the claims as conclusive on the courts.

Ankin v. London and North Eastern Rwy., 1 K.B. 527 [1930] (1929) (ministerial objection to production of a class of documents based in public interest is conclusive upon courts.); Asiatic Petroleum Co., Ltd. v. Anglo-Persian Oil Co., Ltd., 1 K.B. [1916] 822 (1916) (Foundation of the rule of privilege is that production is contrary to the public interest, not that the documents are of an official or confidential nature.); Attorney-General v. New Castle-Upon-Tyne Corp., 66 N.S. 593 (1897) (The crown is not bound to give discovery.); Beatson v. Skene, 5 H. & H. 838, 853 (1860) (Question of whether or not production would damage public interest is not for the judiciary to decide, but for the head of the department in possession of the document); In re La Scociété Les Affréteurs Réunis and the Shipping Controller, 3 K.B. 1921 1 (Crown may not be ordered to make an affidavit of documents for which it claims privilege.). See also the ill-fated Crown Proceedings Act of 1927, where cl. 20(7) would have made objection to production of a document by a minister “final and conclusive” on the courts. The 1947 Crown Proceedings Act failed to provide a statutory ground for crown privilege, stating only that any common law rule for withholding documents survives the Act (Ch. 44, §28 (1)(b)). This failure mirrors the failure of the United States to bring the state secrets privilege under statutory control (See Wright and Graham, Rejected Rule 509 of the Federal Rules of Evidence).

The apogee of reasoning concerning crown privilege came in three cases, only one of them a case concerning state secrets proper. In Home v. Bentinck a military officer sued a member of a commission of inquiry in defamation. The plaintiff requested production of the commission report. Defendant's attorney traced the privilege to prerogative rights of the crown, noting:

By the common law, the king has, by his prerogative, the command of the army . . . and [if] proceedings appear necessary for the due discipline of the army, the king has a right to direct what he thinks proper. This is no more than the exercise of other prerogatives in the affairs of state, in all matters relating to affairs abroad and at home. . . The king, then, though restrained in a certain degree from exercising that full control, which a despotic commander would have in a foreign country . . . has the direction of issuing such orders as he pleases . . . provided they be not contrary to the Mutiny Act or the common law.

2 B. & B. 130, 150–151 (1820).

Chief Justice Dallas, writing for the Court of Exchequer, did not directly touch on the issue of prerogative, but did say that “upon the broad principle of state policy and public convenience, and upon the principle of all the cases cited” that the privilege should apply.

Id. at 164.

Some judges concluded that the judiciary had an affirmative duty to assert privilege for the crown even when there was no ministerial objection made to the production of documents.

See Hennessy v. Wright, 31 Q.B. 509, 518–19 (1888) (Judge must prevent disclosure of messages between governor of a colony and the Secretary of State in absence of objection by responsible crown minister) (Also holding that “official letters are not receivable in evidence,” at 520); Little v. Smith, 9 D. 737, 740 (1847) (“I think the Crown is not entitled to give up the [precognition] without an express judgment of the Court, even if the Crown sees no objection.”); Stace v. Griffith, Law Rep. 2 P.C. 420, 425 (1869) (Lord Chelmsford found he was required to determine, before contents of a letter was admitted into evidence, “that it was not an official communication”).

The most expansive explanations concerning crown privilege after Bentinck came in Beatson v. Skene and Duncan v. Cammel, Laird.

Duncan v. Cammel Laird ([1942] A.C. 624; Beatson v. Skene (157 Eng. Rep. 1415 Exch. Div. 1860).

The opinion in Beatson was the controlling decision concerning crown privilege until the Law Lords took the matter up again in Duncan v. Cammel, Laird, a decision made during the darkest days of World War II.

Supra, note 117.

The Duncan court noted that “the argument before us proceeded on the assumption that there was no recorded decision of this House on the subject. . . This, however, is not so.”

Supra, note 120, at 627

Scottish law developed in quite a different manner to that in England concerning crown privilege.

For one thing, it is still a crown privilege in Scotland and has not evolved into a form similar to English law's “public interest exception,” which is broader in its application. Although the term “public interest exception” is used interchangeably with crown privilege in Scotland, neither term has applied to any entity beyond the national government or the Lord Advocate. See e.g. W.P. v. Tayside Regional Council, 1989 S.L.T. 345, 347 (1989); Whitehall v. Whitehall, 1 Div. 98, 99 (1956) (To accept the broad claims associated with the public interest exception “would be to go far along the road towards subordinating the Courts of Justice to the policy of the Executive, and to regulating the extent to which justice could be done by the limits within which that policy would permit it to be done. This has never been the law of Scotland”).

Despite the clear direction of the opinion, a close read of Vass reveals no holding that compelled production of documents under a public interest objection is beyond court power. Indeed, Eldon is careful to stay within the facts of the case and does not venture to make large statements about the finality of ministerial objections to production of papers. Eldon did discuss the “principle laid down” in Bentinck, stating that “because it is against public policy that you should be compelled to produce instruments and papers . . . it must shut out the possibility of the public receiving any information as to a person's fitness to be appointed to an office.”

Note 125, supra, at 237.

Second, English judges relied on the decision in Admiralty v. Aberdeen Steam Trawling and Fishing Co.

1909 S.C. 335.

Yet, Lord Dunedin went on to say in language that is remarkably like modern U.S. judicial deference to claims of national security:

I do not there agree with him, because the question of whether the publication of a document is or is not detrimental to the public service depends so much upon the various points of view from which it may be regarded, and I do not think that the court is in possession of these various points of view. In other words, I think that, sitting as judges without other assistance, we might think that something was innocuous, which the better informed officials of the public department might think was noxious. Hence, I think the question is really one for the department, and not for your Lordships.

Id. at 340.

Citing to Lord Dunedin, the Duncan court found that in Aberdeen “the Inner House of the Court of Session, overruling Lord Johnston, insisted that the view of the government department was final.”

Duncan, note 79 supra, at 639.

It could hardly be the case that Dunedin held both the position claimed in Duncan and the position that the crown's advantage in claiming privilege was merely an easier resort to the public policy exception. Dunedin plainly stated the law of Scotland in Dowgray v. Gilmour, where he wrote “the Court has, no doubt, the right to order the Lord Advocate or anyone else, to produce documents.”

14 S.L.T. 906, 909 (1907).

Beginning early in the 18^th century, Scottish courts granted compulsion of production against ministerial objections. In the 1727 case of Stevens v. Dundas the court allowed a diligence against the crown requiring the production of an information in spite of the Lord Advocate's unwillingness to release the document.

19 W.M. Morison, Decisions of the Court of Sessions 7905 (1804). There is little information available concerning this case, but it is interesting that the Lord Advocate, Sir Robert Dundas, is referred to in the case as the “King's Advocate,” thereby more clearly tying the decision to one against the crown (“A party, upon a signed information, as guilty of forgery, being committed to prison by the King's Advocate . . . thereupon, he insisted against the King's Advocate to exhibit the information, which the Lords found the Advocate obliged to do”).

One scholar observed that by the middle of the nineteenth century “the ‘ends of justice’ were explicitly recognized as being a relevant consideration in determining whether a public interest objection to production should be overruled.”

F. McShane, note 67 supra, at 265. McShane made this observation in part based on the holding of Lord Hope, the Lord Justice-Clerk, who pondered compelling production of a precognition in an action for wrongful imprisonment (“I am not prepared to say, that there is no case in which the Court would not, when it was necessary for the ends of justice [to] order production of a precognition.” Donald v. Hart, 6 D. 1255, 1255–1256 (1844)).

Under Scottish law, the need of the requesting party was weighed against the claim of public interest; though it should be noted that this was usually not treated as a level playing field. In various expressions of the necessity needed to overcome a claim of privilege, Scottish courts required “great and overwhelming necessity,”

Donald v. Hart, note 139, supra. The Crown admitted in this case that at least in Scotland that courts may compel production of documents “where some great and overwhelming necessity was made out.” (F. McShane, note 67, supra, at 265). See also Arthur v. Lindsay, 22 R. 417, 420 (1895), opinion of Lord President Robertson (considering what “great and overwhelming necessity” means and concluding that ministerial certificates of withholding are almost always controlling). But see Wotherspoon v. H.M. Advocate, 1999 S.L.T. 664, 665 H.C.J., finding that “It was in the public interest that . . . investigations and precognitions should be confidential and that evidence should not be led of their contents save in the case of some great and overwhelming necessity. The sheriff refused the defence motion because he took the view, as he put it, that there were no unusual or strong circumstances or great and overwhelming necessity which would permit the court to waive the highly confidential rule which attaches to Crown precognitions.” Yet the court went on to note that “We think it right to record that we are not persuaded that the sheriff's reasoning was sound.” The sheriff acceded to the contention that withholding of documents is subject to approval by the court.

Duncan was an incorrect pronouncement of foreign law in an English appeal by a judge who admittedly sought advice from another English judge (and not even a Scottish law expert) in a case concerning a failed weapons system during the height of war. Perhaps under the circumstances a strict and careful review of the law gave way to perceived exigencies of the moment. It was bad law that eventually suffered the fate it deserved. Glasgow and Conway v. Rimmer

[1968] A.C. 910 (H.L.).

In Glasgow, “[T]he debate upon this appeal has largely been whether the law of Scotland in respect of an objection to recovery of documents on the ground of public interest was determined by the decision of this House in Duncan's case.”

Glasgow v. Central Land Board, 1956 S.C. (H. L.) 1, 8–9.

Viscount Simonds, in a speech that could hardly be more clear on this matter, said “we have had the advantage of an exhaustive examination of the relevant law from the earliest times, and it has left me in no doubt that there always has been and is now in the law of Scotland an inherent power of the Court to override the Crown's objection to produce documents on the ground that it would injure the public interest to do so.”

Id. at 11.

Lord Keith closed by referring to opinions by the eminent Lord Kinnear and Lord Dunedin. These two lords “had in mind at the same time the existence of an overriding power in the Court [i.e. a power to ignore ministerial objections].”

Id. at 24

In short, there may have been differences over time as to the need required to overcome a claim of crown privilege, but the settled law of Scotland is that determination of applicability of the privilege is left to the discretion of the court and not the minister claiming the privilege. This judicial independence on matters of state secrets is completely ignored by the Supreme Court in Reynolds.

A detailed investigation of Burr is unnecessary, for that has been ably accomplished by other commentators in recent years.

B. Melton, Aaron Burr: Conspiracy to Treason (2002); See L. Fisher, supra note 9, Chapter 7.

Much has been written about Marshall's musings concerning this matter. Louis Fisher notes that Marshall and counsel at bar repeatedly referred to a privilege not to make confidential matters public, but there was no assertion that the confidential material would not be made available to the court.

Marshall realized that if he issued a subpoena to Jefferson, it might be interpreted as a sign of disrespect for the office of the presidency. Yet Marshall was more concerned that his own branch would lose respect if it failed to give an accused access to information needed his defense. United States v. Burr 25 Fed. Cas. 30, 37(C.C.D. Va. 1807 (Case No. 14,692d).

These statements run at the level of principle, but details often have a way of making a principle look cheap and self-serving, and so it is with Burr's trial. In an exchange bringing out facts reminiscent of events of our era, testimony revealed that General Wilkinson had a habit of taking letters deposited for post and opening them without warrant.

Id. at 546.

In rejoinder, Wickham said:

It is not our object to criminate the Government, but to obtain the truth. We hope that General Wilkinson will not say that his conduct has been approved by the Government. Is this a State secret?

Id. at 547.

The possibility of embarrassment so frequently an apparent motivating factor in the modern assertion of a right to withhold documents is also present in Burr's Case.

A fear of embarrassment is also at work in Reynolds, where it is now known that no state secrets were implicated in the documents requested by the plaintiffs. Documents simply showed the aircraft was negligently maintained and the Air force may have known it was not airworthy. See Fisher, supra note 9, Chapter 6.

In a matter directly implicating a claim of state secrets, it transpired that Wickham had asked for the convention with the Spanish Commandant, but was told by persons unidentified that the document “was a state secret.”

Id. at note 188.

In reflecting upon the question of how to treat a certificate from the President claiming privilege for information contained in government communications, Marshall decided that “After such a certificate from the President of the United States as has been received, I cannot direct the production of those parts of the letter, without sufficient evidence of their being relevant to the present prosecution.”

Id. at 553 (emphasis supplied).

While there is plenty of legal smoke in Burr's Case, there is no jurisprudential fire. Matters were speculated upon concerning state secrets, but nothing was ever put at issue since all potential problems in this respect were resolved without the need for decisions by Marshall. It seems Marshall thought courts had the power to order production of even secret material in the hands of the executive branch if duty and justice required that. Burr did not establish a privilege for state secrets. Perhaps this is the reason not a single reported opinion between 1807 and the 1951 circuit court decision in Reynolds refers to Burr as support for a military or state secrets privilege. Most recently, the concurrence in Zubaydah v. United States by Justices Thomas and Kavanaugh improvidently cites Burr as a case directly in the line of state secrets jurisprudence.

Zubaydah, at 142 S.Ct. 959, at 979 (2022).

In the end, Burr offers little of substance to the debate concerning state secrets other than what everyone already knew: that such a privilege must exist in some form. Marshall was not called upon to decide how a privilege against state secrets would be applied in practice. Burr confirms only that there may be times when the security of the nation requires that government held information not come into evidence at trial.

The Totten decision makes no reference to Burr. Considering that courts refer to these two cases as waypoints

See e.g., Mohammed v. Jeppesen Dataplan Inc. 563 F.3d 992 (section III B); El Masri v. United States 479 F.3d 296 (Section II); Terkel v. AT&T 441 F. Supp. 2d 899 (section C, parts 2 and 3).

The question in Totten was straightforward and the U.S. Supreme Court answered that question in a mere four paragraphs. One William Lloyd made a contract with President Abraham Lincoln for espionage services during the Civil War, but the government breached the terms of payment under the contract. Lloyd's estate sued and the Court concluded that contracts for espionage made during time of war could not be sued upon. A narrow reading of Totten yields the conclusion that suits for breach of payment for espionage services are a discrete category of unenforceable contracts.

Significantly, no secret information was withheld based on a claim of privilege, and the pertinent facts to litigate the claimed breach had already been publicly aired.

New York Times, Notes from the Capital, March 16, 1876.

In its opinion, the Court apparently introduced the question of secrecy sua sponte, noting that “Both employer and agent must have understood that the lips of the other were to be forever sealed respecting the relation of either to the matter.”

Supra note 134, at 106.

First, as noted, much about the case had already been made public and there appeared to be little concern with secrecy either on the part of the Court of Claims or on the part of counsel for the government. Second, it is wrong to say that both the government and Lloyd “must have understood that the lips of the other were to be forever sealed.” There was no law at the time that would have prevented Lloyd from publicizing an account of his espionage activities during the Civil War. Indeed, others had done exactly that.

See, e.g., B. Boyd, Belle Boyd in Camp and Prison (1865); T. Conrad, A Confederate Spy: A Story of the Civil War (1892); S. Edmonds, Memoirs of a Soldier, Nurse, and Spy: A Woman’s Adventures in the Union Army (1865); R. Greenhow, My Imprisonment and the First Year of Abolition Rule at Washington (1863).

There is no language in Totten that indicates a broader scope for executive secrecy powers beyond application to espionage contracts. It is unlikely that the Totten Court meant to announce a general power of the President to withhold documents from courts in such a short, unbriefed opinion. But that is now apparently the position of some presidential administrations.

Memorandum of the United States in Support of the Military and State Secrets Privilege and Motion to Dismiss, Hepting v. AT&T, C-06-0672-VRW, No. 124-1, at 8, 15.

Despite these apparent limits of the ruling, some administrations have claimed that the Totten Bar requires dismissal of various actions against the United States. The administration of George W. Bush argued Totten should bar actions relative to warrantless electronic surveillance of U.S. citizens under the theory that Totten extends to all cases where any kind of secret agreement is implicated.

See In re NSA Tel. Rec., 444 F. Supp. 2d 1332 (J.P.M.L. 2006) for a list of dozens of actions against the United States alleging unconstitutional and illegal electronic surveillance of U.S. citizens. This case considered and approved consolidation of these cases in the Northern District of California. In many of these cases, the United States asserted that Totten barred suit. The government also seems to want the Totten “doctrine” to do a good deal more, arguing that whenever a matter is claimed to be clothed in national security the case should be dismissed on the pleadings. See Hepting, note 147 supra. Although courts have not quite made this leap, it is a logical step in the reinvention of the prerogative regis American style.

With due respect to the court, it might be observed that there is no balancing, and that the times where there is an “irreconcilable conflict” is not in “exceptional circumstances” but whenever the privilege is raised.

In analyzing state secrets litigation for instances of Totten-based dismissals of cases there is only one instance of a dismissal where the plaintiff was not in contractual privity with the government.

Hudson River Sloop Clearwater, Inc. v. Navy, 1989 U.S. Dist. LEXIS 19034 (E.D.N.Y. 1989).

In 1948, a B-29 airplane crashed at Waycross, Georgia, and widows of three civilian victims sued the federal government under the Federal Tort Claims Act (FTCA).

Id. at 2.

The purpose of the review would have been to ensure that the privilege was invoked to protect state secrets, and not to avoid liability or embarrassment. We now know the report contained no secrets of state, but it did say the plane was not airworthy. Had the district court judge seen the accident report, he would have realized it contained no sensitive information and that the government had deceived him. The birth of the state secrets privilege emerges from executive branch officials making false claims to a federal district court. It would be difficult to produce an abuse that should result in more caution in court acceptance of assertion of the privilege than the facts of the case that gave it birth. In the face of government refusal to produce requested documents to the district judge to be read in his chambers, he resolved the disputed facts in favor of the three widows and moved to determination of damages.

Id.

At the trial level the Air Force did not assert the state secrets privilege by name, but claimed that the aircraft in question was on a confidential mission.

Id.

In an anemic opinion, only twelve pages long, the U.S. Supreme Court adopted the executive stance and announced a decision derived from the spirit and language of Duncan v. Cammel, Laird. The government would not be compelled to produce the documents for in camera inspection. The opinion contains astonishingly little justification considering it institutes what is in practice a doctrine of legal unreviewability for matters involving anything that might be brought under the rubric of national security. Not even the oral arguments were preserved by the Court, nor do any of the Justices’ private papers contain much useful information about the case.

Findings by Louis Fisher concerning research for his In the Name of National Security (Kansas U.P. 2006), Feb. 2007.

A fair assessment of the majority opinion is that the Reynolds decision is a shallow analysis. Even the three dissenting Justices (Black, Frankfurter, and Jackson) provided no evidence or reasoning whatsoever to support their position. Perhaps it is notable that these three dissenters disproportionately represent the sum of juridical talent on the Court at the time. Yet they merely dissented “substantially for the reasons set forth” by the Third Circuit. No additional analysis or explanation is given. This thread-bare decision critically facilitated the redistribution of political and constitutional power toward the executive branch in the post WWII era. It is a redistribution of power that significantly altered the character of government. Just as modernity and the era of nuclear weapons dramatically shifted national defense power to the presidency, the Court facilitated this shift by providing the executive branch with a readymade tool to escape answering to inconvenient congressional inquiries and legal review of executive branch activities.

In perhaps an unsurprising result, the government report in the Reynolds case contains no secrets. It was withheld to avoid embarrassment and liability, since it related that the plane was so defective and poorly maintained that it should never have been allowed to fly.

See accident report pages 26a–30a.

The Court in theory retains the power to compel production, but all parties surely now understand this to be a judicial face-saving device. If there were any doubt to this matter, the decision in Zubaydah put that to rest.

Supra note 196.

It is difficult to imagine anything other at work here beyond judicial embarrassment and fear of establishing a robust judicial presence in national security matters. This is at the heart of the matter. The unwillingness of the Court to signal that misuse of the label of national security for reasons outside of necessity and law will be remedied by courts has left no viable avenue to check abuse in the name of national security.

A single saving element to Reynolds is that while it acquiesced to a “state secrets privilege,” it specifically refused the Justice Department's demand for a public interest exception privilege to withhold information from courts.

Reynolds, supra note 219, at 6.

Since classificatory power is solely in the hands of the executive branch, the impulse to classify out of habit rather than necessity is common.

Noted from personal experience and observation of one of the authors.

Any person of any rank or position with a classification stamp may remove documentation, writings, artifacts and anything else from evidence through classification. Add to this that in the initial classification decision the costs of under-classification may be high, but there is no obvious cost to overclassification. Justices Gorsuch and Sotomayor chastised their colleagues in the lead sentence of their dissent in Zubaydah, writing: “There comes a point where we should not be ignorant as judges of what we know to be true as citizens. This case takes us well past that point. . . we should not pretend it will safeguard any secret.”

142 S. Ct. 959, at 985 (2022).

In English law, the privilege was a principle of government. As Viscount Simon wrote in Duncan, the case represented a “question . . . of high constitutional importance”

Duncan, supra note 119, at 629.

The ghost of Duncan v. Cammel, Laird haunts American jurisprudence, and after Zubaydah we have what amounts to the “class exception” as that of the pre-Conway British jurisprudence. We also find ourselves in a world where anything may be classified and put beyond the reach of law without fear of penalty. Overclassification is endemic in the federal government, and once an item is classified at “secret” level or higher, it is effectively unavailable to the judicial process without executive branch acquiescence. Over 30 years ago, former Dean of the Harvard Law School and U.S. Solicitor General Erwin Griswold wrote an op-ed for the Washington Post titled “Secrets Not Worth Keeping.”

Wash. Post, Feb. 16, 1989 (https://www.washingtonpost.com/archive/opinions/1989/02/15/secrets-not-worth-keeping/a115a154-4c6f-41fd-816a-112dd9908115/)

Other than the Zubaydah decision, it would be difficult to capture a more telling instance of this conclusion than the executive branch classification and removal of a 2014 court decision of a federal judge that had been available to the public on government servers for months.

Restis v. Am. Coalition Against Nuclear Iran, Inc. 2015 U.S. Dist. LEXIS 36085

Government counsel also argue before courts that it would be incorrect to put limiting principles on the privilege, including refusal to apply the privilege when invoked to protect the introduction of unclassified information. As one government attorney put it: “The privilege protects information that may appear innocuous on its face, but which in a larger context could reveal sensitive classified information.”

“Court Views State Secrets Too Narrowly” Jan. 29, 2015 Secrecy News, Federation of American Scientists (https://fas.org/blogs/secrecy/2015/01/ssp-narrow/)

A telling example of the mire courts have slid into is that Attorneys General now make straight-faced arguments that the privilege is not limited to classified material. In Mohamed v. Eric Holder

Mohamed v. Holder (Case No. 1:11-CV-0050) (E.D. Va., Defendant's Response to Court Order.

Notice that in the context of this case it meant that even unclassified and publicly available information is subject to exclusion under a state secrets claim. The Attorney General added: “[t]he privilege also protects information that may appear innocuous on its face, but which in a larger context could reveal sensitive classified information”

Supra note 245, at p. 10.

The Attorney General then turned to Judge Trenga's determination that 28 documents reviewed by the court in camera did not contain state secrets and would be made available to the plaintiff. Citing the Fourth Circuit opinion El Masri v. U.S., the Attorney General states that:

[a]lthough the state secrets privilege was developed at common law, it performs a function of constitutional significance because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities. Reynolds itself suggested that the state secrets doctrine allowed the Court to avoid the constitutional conflict that might have arisen had the judiciary demanded that the Executive disclose highly sensitive military secrets.

479 F.3d 296, at 303.

Even for state secrets jurisprudence, this is a breathtaking position. It is asking the court to find unclassified and publicly available information pertinent to the case to be excluded under a state secrets assertion. Once this threshold is passed there is no limit to the extent of the privilege. If we accept that the grounds for the privilege are based in constitutional protection of the executive branch province, then the privilege is divorced from law and review of courts and there is little outside of its potential compass.

The American state secrets privilege shares an uneven history with the doctrine of crown privilege. But the United States government successfully elided crucial distinctions between the two concepts by claiming a constitutional basis for the privilege; often alluding to, and sometimes simply declaring, that it protects the sphere of Article II powers held by the President.

See, e.g. Hepting v. AT&T, Nos. 06-17132 and 0617137, Brief for the United States (March 9, 2007), at 15 (“The state secrets privilege derives from the President's Article II powers to conduct foreign affairs and provide for the national defense”).

The discussion seems to involve political compromise, not legal or constitutional principle. It is about the nuts and bolts of judicial action, not the reach of Article II powers. The Court refers repeatedly to “judicial experience” and the practice and habits of judges in factually idiosyncratic settings of discovery. It speaks of “sound formula of compromise,”

Id. at 9.

But it is also clear that the court keenly felt the anxiety of the Cold War and was not about to be out of step with the rest of the government on policies concerning national security. Perhaps this led to inadvisable judicial timidity in not only adopting tenets of crown privilege, but also in finding that where national security information is withheld the plaintiff still bears the burden of making out all the elements of a case otherwise required. The combination of these two, quite separable, features virtually guaranteed the expanded use of the privilege and the temptation to use it to protect the executive branch from unwanted scrutiny, embarrassment, and even disclosure of illegal and unconstitutional activity. The motivation for use of the privilege is not to avoid monetary liability but to avoid exposure of national security information and, perhaps just as often, embarrassment over executive branch activities.

The whole matter would have been largely avoided had the Reynolds Court concluded, as did the district court and the Third Circuit, that governmental refusal to produce documents results in factual matters put at issue relevant to the documents be taken in favor of the plaintiff. The result is judicial abandonment of constitutional duties to check abuse of executive power.

The Court noted that “While claim of executive power to suppress documents is based more immediately upon [statute], the roots go much deeper. [Statutory privilege] is only a legislative recognition of an inherent executive power which is protected in the constitutional system of separation of power.”

Id. at 6, note 9 (1953).

The district court and the Third Circuit in Reynolds did not force public disclosure of the accident report. Instead, they merely insisted that the report be shared with the district judge for his independent analysis. Had that been done, the district judge would have discovered that the report contained no state secrets. While nothing concerning national security is at stake, the report did make clear that the plane was so defective it should never have been allowed to fly.

“Report of Special Investigation of Aircraft Accident Involving TB-29-100XX NO. 45-21866”, filed in court, June 22, 1953.

In a jagged couplet of asserting judicial power and then undercutting that power, the Supreme Court in Reynolds offered this reasoning: “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case.”

Id. at 9–10.

It is unclear how judicial review of classified evidence jeopardizes security, when judges encounter and handle classified information in contexts other than tort suits against the government.

For example, the Classified Information Procedures Act (18 U.S.C App. iii) directs how criminal cases are pursued where classified information is put into evidence.

Finally, in tilting the field heavily to the executive branch, the Court admonished that where “circumstances indicat[e] a reasonable possibility that military secrets [are] involved, there [is] certainly a sufficient showing of privilege to cut off further demand for the documents.”

Reynolds, at 11.

Despite the references to pragmatism and compromise, the effect of the privilege was to instill great deference and fear in the judiciary concerning requests for material asserted to involve matters of national security. The government's arguments relied heavily on the spirit of crown privilege and were aiming for the same conclusiveness given to ministerial withholding that obtained in English law. While it did not impose this result as clear de jure, it has reached that goal de facto.

In arguing that the principles of crown privilege should be made applicable to United States law, the government in Reynolds offered this position: “Great weight should also be given to the decision in Duncan v. Cammel, Laird & Co. . . . in which the House of Lords reached the result urged by the Government here.”

Brief of the United States, United States v. Reynolds (1953), at *38.

At this crucial juncture the government then followed the Duncan court in an erroneous reading of Scottish law. The brief argued:

. . . after reviewing the cases, and quoting among others the statement of Lord Kinnear in Admiralty Commissioners v. Aberdeen Steam Trawling & Fishing Co., . . . – ‘A department of Government to which the exigencies of the public service are known as they cannot be known to the Court, must, in my judgment, determine a question of this kind [whether or not to withhold documents] for itself . . .’ – the Lord Chancellor states that the executive determination of privilege is conclusive on the court.

Id. at *40.

But as we have seen, the Duncan, Vass, and Aberdeen courts were simply wrong in their reading of Scottish law: ministerial objections to production of documents are not conclusive on Scottish courts. Glasgow corrected this misreading. Such objections are certainly strong statements and not to be lightly impugned, but the decision of production is for the court. Importantly, courts in Scotland may engage in examination of underlying documents in claims of privilege if pretext, rather than national security, is suspected as the motivating reason.

Favorably quoting English law, the brief for the United States finds that “it is embarrassing to a judge that he should be informed of matters which he would much rather not hear and which make it much more difficult for him to do his duty . . . [T]he judge, who, after hearing the statements, has to pronounce sentence, may, quite unconsciously, have his judgment influenced by matters which he has no right to consider.”

Id.

And in an unusual argument, the brief claims that crown privilege should have more forceful effect under our law than even in England:

The constitutional and public policy considerations which underlie the result in Duncan v. Cammell, Laird & Co., have, we submit, even greater significance in the present case than in the English case, because the English constitution does not embody the doctrine of separation of powers and there is no extensive history of executive independence like that we have discussed in the preceding subsection. None of these difficulties would confront an English court seeking to require disclosure. Hence – contrary to the view of the court below – we think that the present case is a fortiori.

Id. at *41–42.

It should be enough to note it is a bizarre claim that our Constitution, which grew out of the express rejection of monarchical power, nevertheless incorporates prerogative rights of the English crown. In addition, that incorporation is one that the judiciary should accept without question or qualm.

Finally, in an allusion to what would eventually underlie the mosaic argument,

The mosaic argument is often purveyed by the U.S. government to prevent disclosure of information that is unclassified, by claiming that unclassified bits of information may be assembled into an analysis that would be classifiable under existing classification guidance. The power of this position is that assembly of unclassified or benign information into complex descriptions and understanding of activities and organizations is precisely what U.S. intelligence agencies do themselves with respect to foreign powers and adversaries. This legal argument often has merit and should not be minimized or generally seen as a subterfuge to avoid production of information. One of the authors (Weaver) worked as an intelligence analyst for eight years in Europe. He engaged in intelligence gathering programs that utilized the method of assembling sophisticated understanding of intelligence targets through seemingly insignificant and disparate pieces of information. Nevertheless, the argument advanced is subject to abuse, and has within it a tempting elastic property. Yet, artificial intelligence may buttress the government argument that even unclassified information may represent a significant threat to national security. It is certainly conceivable that analysis of a vast reservoir of publicly available information may produce classified assessments of U.S. military and intelligence capabilities.

Courts must recognize “that only the executive is in a position to estimate the full effects of . . . disclosure[s]” and that “unless the courts are to interfere in the administration of Government, they must trust in the judgment of the appointed administrator.”

Id. at *52.

While some claim the Reynolds Court did not adopt the position of complete deference argued for by the government, it nonetheless arrived at that position as made clear by the Zubaydah decision. The Court made an unwise surrender to executive power, but contained within the British and Scottish case law it incorrectly cites are the tools of potential resurrection of oversight. It would be constitutionally impermissible, as well as an embarrassment, for the Court to surrender its power to order production of evidence. Yet so long as it could reach that functional equivalent and avoid placing courts on collision courses with claims of national security it could maintain the illusion of control.

If the Court had understood the nature of Scottish law, and that it was not in congruence with English law, it may have been humbled to adopt a different stance. It is virtually inconceivable that the Court would have adopted a position of less judicial power than that held by Scottish courts, which are at least nominally under the authority of a monarch.

English and Scottish law, Burr, Totten, and Reynolds, are not parts of a coherent whole concerning the origins of a state secrets privilege, and they certainly do not provide a sufficient legal foundation to accord the presidency the unaccountable power it now wields over matters claimed to concern national security. It is difficult to conclude other than that courts have simply abandoned the field of a contentious area of law by reliance on an “ancient” common law doctrine that does not exist.