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The Truth About Secrets

The Bush administration's use of the State Secrets Privilege is neither novel nor undemocratic.

12:00 AM, Jun 1, 2006 • By ADAM J. WHITE
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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.