Contemporary jurisprudence around the privilege has not always been careful to distinguish it from historically adjacent doctrines.
Recently, the Trump administration invoked the state secrets privilege in a case questioning the government’s compliance with a federal court’s order. This is a common law evidentiary privilege derived from the president’s “constitutional authority over the conduct of this country’s diplomatic and military affairs.” Although the contemporary understanding of this privilege is most often traced to the 1953 Supreme Court decision in United States v. Reynolds, its history and jurisprudential development is more complicated and fraught than current Reynolds-based analysis lets on.
The exact basis for the state secrets privilege is hazy. Courts have complained that the privilege is “weakly rooted in our jurisprudence” and therefore “cannot and should not be a device for the government to escape [liability].” The Reynolds Court suggests that the privilege arises out of the separation of powers, while other courts have looked to the president’s authority as commander in chief under Article II.
Perhaps most troubling, however, is the expansion over time of both the use and parameters of the privilege along with courts’ conflation of the privilege with the bar to litigation, articulated by Totten v. United States. In this 1876 case involving a Civil War spy and the U.S. government, the Supreme Court held 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.” The Totten bar and the Reynolds-based state secrets privilege are legally distinct, yet the confused jurisprudence between the doctrines continues to yield harmful results.
The Trump Administration’s Assertion of the State Secrets Privilege
In the present case before Judge James Boasberg’s federal district court in Washington, D.C., five Venezuelan men have challenged their removal to an El Salvador prison by U.S. authorities under President Trump’s asserted powers under the Alien Enemy Act (also referred to as the Alien Enemies Act), 50 U.S.C. § 21. On March 15, Judge Boasberg issued an order temporarily prohibiting the government from deportations under the Alien Enemy Act, an order that the Trump administration appeared to disobey by failing to turn planes holding petitioners around—which were still in the air at the time of the order.
After a March 17 hearing regarding the administration’s noncompliance with his order, Judge Boasberg asked the government to provide additional information regarding the details of the deportation flights. The Justice Department objected, stating that answering his questions “would undermine the Executive Branch’s ability to negotiate with foreign sovereigns in the future by subjecting all of the arrangements resulting from any such negotiations—as well as the negotiations themselves—to a serious risk of micromanaged and unnecessary judicial fishing expeditions and potential public disclosure,” noting that the government was considering invoking the state secrets privilege as to certain responses to the court’s questions. On March 24, the government formally gave the court notice that it was invoking the state secrets privilege in this case.
As a former presiding judge of the United States Foreign Intelligence Surveillance Court, as well as the chief judge of the United States Alien Terrorist Removal Court, Judge Boasberg is no stranger to classified or otherwise sensitive information. But he also expressed a proper degree of skepticism when the government raised the possibility of invoking the state secrets privilege, citing Reynolds for the premise that “[t]he privilege is not to be lightly invoked” and questioning both the timing of the government’s invocation of the privilege as well as its assertion that in camera review of the sensitive information would somehow be a danger to national security.
Origins of the State Secrets Privilege in American Law
The first hint of the existence of a state secrets privilege in American law can be found in Marbury v. Madison, where the Court was presented with an evidentiary question dealing with the separation of powers between the executive and judicial branches of government. During the proceedings in that case, President Jefferson’s attorney general, Levi Lincoln, who had previously been acting secretary of state, was asked to testify. Lincoln objected on the grounds that he could not be compelled to testify “as to any facts which came officially to his knowledge while acting as secretary of state.” Chief Justice John Marshall overruled Lincoln’s objection, as he found there was nothing confidential that would be disclosed, but noted in dicta that if “any thing was communicated to him in confidence he was not bound to disclose it.”
Marbury aside, perhaps the earliest beginnings of state secrets privilege as recognized in Reynolds can be found in the 1807 treason case against Aaron Burr. As part of his defense in that case, Burr sought access to a letter from Gen. James Wilkinson to President Jefferson that Burr argued “may be material in his defence.” Chief Justice Marshall expressed concern over the “delicate question” posed by Burr’s request, which appeared to put the rights of the accused in a capital case up against national security considerations. Ultimately, Marshall decided that the letter did not contain sensitive information but went on to point out that if the letter did “contain any matter which it would be imprudent to disclose, which it is not the wish of the executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will, of course, be suppressed.”
While the Jefferson administration was not overly concerned about the Wilkinson letter, it did object to the presentation of a letter from Jefferson to George Hay, one of the attorneys prosecuting the case against Burr. In considering whether the Hay letter should be presented, the court noted its duty to “protect [the president] from being harassed by vexatious and unnecessary subpoenas” but also noted that “the law does not discriminate between the president and a citizen” and that the “propriety of introducing any paper into a case, as testimony, must depend on the character of the paper, not the character of the person who holds it.” Burr was ultimately acquitted, obviating the need for further discussion of this evidentiary privilege, but the discussion shows that the mere objections of a president are not, by themselves, enough to bar access to evidence.
The Totten Bar to Litigation
Enoch Totten was the administrator for the estate of William Lloyd, who had entered into a secret agreement with President Lincoln to spy on behalf of the United States. Totten claimed that Lloyd’s agreement with the president entitled him to $200 per month, plus expenses, and was seeking payment for these services on behalf of the Lloyd estate. When the Supreme Court considered the case, the question presented was whether the president had the power to bind the U.S. government by secret espionage contracts.
The Totten Court affirmed the lower court’s dismissal of Totten’s claim, reasoning that Lloyd’s service under his agreement with the president was a “secret service” and that the “employment and the service were to be equally concealed.” The Court held that it was well within the authority of the president, under the powers granted to his office through Article II, “to employ secret agents” but that he was due full immunity from litigation over these private contracts due to national security concerns. The Court reasoned that disclosure of such contracts “might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent.” Any kind of litigation in these cases, therefore, would be impossible, as these contracts must remain secret, because any “publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery.”
The language used by the Totten Court is very broad, requiring complete dismissal of the complaint and effectively denying Article III courts jurisdiction over cases involving secret espionage contracts. The rule became the Totten bar to judicial relief, and while it was largely ignored in the decades that followed the decision, it has become quite popular with the executive branch since the mid-20th century.
U.S. v. Reynolds and the State Secrets Privilege
In Reynolds, the widows of three civilians killed in the crash of an Air Force B-29 bomber sued the U.S. government under the Federal Tort Claims Act and sought as evidence the official Air Force accident report as well as statements from surviving crew members. The government moved to quash plaintiffs’ discovery on the basis that the information they had requested was barred from disclosure pursuant to Air Force regulations.
The federal district court rejected the government’s claims, and the secretary of the Air Force filed a formal Claim of Privilege in the case. In its claim, the Air Force asserted that the B-29 in question had been carrying electronic equipment and other items that “were highly secret,” and therefore any information about the flight could not be furnished to plaintiffs “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.” The district court also rejected this claim and ordered the documents to be produced to the court, where the judge could “determine whether [the documents] contained privileged matter.” When the government appealed this decision, the U.S. Court of Appeals for the Third Circuit affirmed the lower court’s decision.
The Supreme Court granted certiorari in the case to address the “important question of the Government’s privilege to resist discovery.” The government argued that the executive branch may withhold documents from the courts if it is in the “public interest.” The Court, citing Totten, acknowledged the existence of the “privilege against revealing military secrets” and also pointed out that “[j]udicial experience with the privilege which protects military and state secrets has been limited in this country.”
With this as background, the Court articulated procedural rules regarding state secrets cases. First, the privilege belongs solely to the government, and it cannot be claimed or waived by a private party. Second, the privilege “is not to be lightly invoked.” Third, there must be a formal claim of privilege, entered by the head of the executive department in control of the matter, after “actual personal consideration of that officer.” Finally, the Court stated that the power to decide whether a claim of state secrets privilege by the executive is appropriate belongs to the courts, but they must make this assessment “without forcing a disclosure of the very thing the privilege is designed to protect.”
When the Court in Reynolds relied in part on Totten to derive what has become the state secrets privilege, they, perhaps unintentionally, created unnecessary confusion about the two principles. This conflation has been a source of an expansion of the scope and application of the privilege, creating artificial obstacles for plaintiffs seeking relief in matters dealing with issues of foreign policy and national security.
The Expansive Effect of Totten–Reynolds Conflation
Despite Reynolds’s reliance on Totten, the Totten bar to litigation is legally distinguished from the state secrets privilege. The Totten Court did not require that the government actually assert a claim of privilege in order to find that secret espionage contracts are forbidden from litigation within U.S. courts. The Court seemed to derive what it called a “general principle” from thin air, with no apparent basis for its reasoning. The opinion contains no explicit mention of constitutional issues such as separation of powers—and there is only a tangential reference to the president’s Article II powers—in its discussion of the legality of secret espionage contracts.
Indeed, the Totten bar could be viewed as a specialized contract rule based on public policy concerns rather than as an evidentiary doctrine, an idea the Supreme Court seemed to agree with in Tenet v. Doe. In that case, two former covert agents claimed that the U.S. government had breached its contract with them when it refused to provide financial support in exchange for the espionage services they provided against their native country during the Cold War. The plaintiffs argued that the state secrets privilege had subsumed the Totten bar to litigation, such that any assertion of state secrets by the government would automatically stifle further proceedings. The government argued that the Totten bar applied, and disagreed with the plaintiffs’ assertion, stating that the bar applied “where the very subject matter of the action [is] a contract to perform espionage.” The Court agreed, holding that the plaintiffs’ action was subject only to the Totten bar, finding no basis for “[the] view that the Totten bar has been reduced to an example of the state secrets privilege.”
Yet despite the language and scope of Totten being confirmed by Tenet, courts have found it difficult not to conflate Totten with the state secrets privilege. Even within the Tenet case itself, where some of the plaintiffs’ claims were noncontractual, the Court held that Totten precluded all claims, even those that were not strictly about contracts. The Court spoke to this contradiction, stating that “[n]o matter the clothing in which alleged spies dress their claims, Totten precludes judicial review in cases such as respondents’ where success depends on the existence of their secret espionage relationship with the Government.”
Both the district court and the U.S. Court of Appeals for the Ninth Circuit had identified noncontractual claims by the Tenet plaintiffs, making two points about Totten’s application. First, Totten is not a complete bar to all complaints based around secret espionage contracts with the government if some noncontractual parts of the claim could be adjudicated without Totten’s contract-related bar being invoked. Second, some similar claims might not be automatically barred by Totten if the need for procedural due process could be met without the government’s explicit acknowledgment that such a secret espionage contract existed, thus avoiding the risk to national security, which was the basis for the Totten Court’s original reasoning.
Other courts have followed suit in the continued expansion of the Totten bar into state secrets privilege reasoning. For example, in Weinberger v. Catholic Action of Hawaii/Peace Education Project, Catholic Action sought to require the U.S. Navy to file environmental impact statements before the construction of nuclear weapon storage bunkers. The Catholic Action Court dismissed the case, relying on Totten, and erroneously established a link between the bar to litigation and the state secrets privilege, stating 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.” Contrary to this reasoning, the Reynolds-based state secrets privilege addresses the possible prohibition of only select evidence at trial based on national security claims, the veracity of which courts are required to evaluate at the time of the privilege’s invocation. The state secrets privilege is not necessarily a bar to adjudication.
The Duty of Courts Under Reynolds
It is the duty of courts to ensure fair adjudication of claims, including those that may involve matters of foreign policy or national security. This duty extends to the careful evaluation of assertions of the state secrets privilege by the government. As the Reynolds Court put it, “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” That Court’s “formula of compromise” was intended to provide a balance between the national security concerns of the government and the legitimate rights of citizens seeking redress and access to necessary documents to support their claims, insisting that judges “must be satisfied from all the evidence and circumstances” as to the dangers asserted by the government regarding the production of certain evidence.
Some courts have recognized this important duty. In Machin v. Zuckert, for example, the U.S. Court of Appeals for the D.C. Circuit evaluated a claim of state secrets privilege by the U.S. Air Force, and firmly established the court’s important role in evaluating such claims, stating that
[w]here the line is properly drawn between privileged and unprivileged statements appearing in the … reports is impossible to ascertain without viewing the reports themselves in their entirety. In this connection, we cannot accept the notion that the Secretary should himself decide what portions of the reports are or are not privileged. This is ordinarily a task for the court.
While the Machin court acknowledged that the Reynolds Court “did not require submission of the report there involved to a court for a judicial determination of the applicability of the privilege invoked to the contents of the report in question,” they observed that “in contrast to Reynolds, no substantial harm could result from submission of the report to judicial scrutiny.”
Despite these admonitions, the misapplication and confusion between the Totten bar and the state secrets doctrine has resulted in the courts’ increasing deference to claims made by the executive branch regarding national security and state secrets. Courts should not be afraid to step into the role outlined in Reynolds to carefully evaluate government claims of privilege, applying the “reasonable danger” standard, thus treating such claims not as an absolute bar but, rather, as a qualified evidentiary claim.
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Many years after the decision in Reynolds, it was revealed that the official Air Force report that had been withheld from plaintiffs under the government’s assertion of the state secrets privilege did not in fact contain the sensitive information that had been claimed by the government in its motion. The Reynolds Court, in its misapplied deference to the government’s assertions, had relied on the fact that it was a “time of vigorous preparation for national defense” and that any information about the equipment aboard the B-29 at the time of the crash “must be kept secret if their full military advantage is to be exploited in the national interests.”
Despite this outcome, it is worth noting that the Reynolds Court did not bar the plaintiffs’ claims but, instead, remanded the case without the Air Force report as evidence. Courts would do well to take the language in Reynolds seriously and reconsider the tendencies of courts to incorrectly conflate the Totten bar and the state secrets privilege.
– Jeffrey Vagle, Published courtesy of Lawfare.
