...bar to litigation whenever the administration determines that the disclosure of agency documents would harm national security. In relying on the privilege in one NSA case, the Justice Department argued that its assertion "assuredly [is] not any indication that the allegations the plaintiffs are making are necessarily true. Nor is it an indication that the allegations are necessarily false. They're instead function of the subject matter of those allegations. The reality is that given the nature of those allegations, it would expose state secrets for them to be either confirmed or denied." (2) Whether such phone companies as AT&T are cooperating with the government in intelligence gathering "is absolutely a secret; it's a secret of the highest order." (3)

On 12 May 2006, a federal district court ruled that Khaled El-Masri could not bring suit against the government on the grounds that he was illegally detained as part of the CIA's "extraordinary rendition" program, tortured, and subjected to other inhumane treatment. The court held that the state secrets privilege had been validly asserted. (4) In a similar case, Maher Arar sued the government for having him removed to Syria for the express purpose of detention and interrogation under torture by Syrian officials. His case was dismissed in part on state secrets grounds. (5)

In these and other cases, the Justice Department relies primarily on United States v. Reynolds (1953), the first time that the Supreme Court recognized the state secrets privilege. For a federal court to automatically accept claims of state secrets by an interested party (the government)--and treat them as absolute--would do great damage to the reputation and integrity of the federal judiciary. It would repudiate any pretense of judicial independence, objectivity, the weighing of evidence, or fairness to a private litigant. This is especially true in the face of the repeated use of the privilege by the executive branch over the past several decades. (6)

In his authoritative treatise on evidence, John Henry Wigmore recognized that the state secrets privilege exists, but he concluded that the branch responsible for determining the necessity of the privilege is the judiciary, not the executive: "Shall every subordinate in the department have access to the secret, and not the presiding officer of justice?" (7) A court that "abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege." (8)

REYNOLDS IN DISTRICT COURT

In United States v. Reynolds (1953), the Supreme Court for the first time recognized and upheld the state secrets privilege. Although the decision remains the principal citation for the privilege, the circumstances of the case provide powerful evidence that it was poorly and unwisely decided and should not be relied on to sustain independent and unchecked executive power. Many legal precedents exist, including Dred Scott and the Japanese-American cases of World War II. Not all provide sound and compelling guidance for contemporary times. (9)

In Reynolds, three widows brought an action under the Federal Tort Claims Act to sue the government for negligence in the midair explosion of a B-29 bomber on 6 October 1948, over Waycross, Georgia. Five of eight crew members perished, as did four of the five civilian engineers on board, who had served as technical advisers to an Air Force project. They provided assistance with the secret equipment tested on the flight, all of which was known to newspaper readers who learned of the crash the next day. (10) The widows requested several key documents, including the accident report and the depositions of three surviving crew survivors.

The Federal Tort Claims Act of 1946 authorizes federal agencies to settle any claim against the United States "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." (11) Congress directed federal courts to treat the government in the same manner as a private individual, deciding the dispute on the basis of facts and with no partiality in favor of the government. The United States "shall be liable in respect of such claims.., in the same manner, and to the same extent as a private individual under like circumstances, except that the United States shall not be liable for interest prior to judgment, or for punitive damages." (12)

Other than the exceptions listed in the statute, Congress authorized courts to adjudicate claims against the government and decide them fairly in light of available facts. Congress empowered the courts to exercise independent judgment. There was no reason for judges to accept at face value a government's claim that an agency document requested by plaintiffs was somehow privileged, without the court itself examining the document to verify the government's assertion. To uncritically accept the government's word would be to abdicate the court's duty to protect the ability of each party to present its case fairly in court. It would leave control entirely in the hands of self-interested executive claims.

The three widows filed their lawsuit on 21 June 1949. The case was assigned to Judge William H. Kirkpatrick, chief judge of the Eastern District in Pennsylvania. Representing the women were Charles J. Biddle and Francis Hopkinson of Drinker Biddle & Reath, a prominent law firm in Philadelphia. Biddle submitted 31 questions to the government, requesting that it provide answers and submit copies of identified records and documents. The government responded to the interrogatories on 5 January 1950.13 The first question asked whether the government had directed an investigation into the crash. If so, the government was to attach to its answer a copy of the reports and findings of the investigation. (14) The government acknowledged that there had been an investigation but refused to produce the accident report. (15) No claim of state secrets was advanced at this stage.

Question 7 in the interrogatories: "Was any engine trouble experienced with the said B-29 type aircraft on October 6, 1947, prior to the crash?" (16) The government's unhelpful reply: "Yes, almost immediately before the crash." The last two questions sought information about possible mechanical or engineering defects on the B-29 for three months immediately preceding the crash. Was it necessary at any time to postpone a scheduled flight of the plane because of those defects? The government answered in the negative. (17) The last question asked whether the government had prescribed modifications to the B-29 engines to prevent overheating and to reduce fire hazards. If so, when were the modifications prescribed? If any modifications had been carried out, the interrogatory asked for details. The government's answer to this crucial question was a blunt and abrupt no. (18) When the declassified accident report was discovered on the Internet in 2000, the falsity of that answer became apparent.

In response to the widows' request for the accident report and the statements of the three surviving crew members, the government on 25 January offered five reasons for withholding the documents. The first: "Report and findings of official investigation of air crash near Waycross, Georgia, are privileged documents, part of the executive files and declared confidential, pursuant to regulation promulgated under authority of Revised Statute 161 (5 U.S. Code 22)." (19) The citation was to the Housekeeping Statute, which dates back to 1789 and merely directed agency heads to keep custody of official documents. It did not in any way authorize the withholding of documents from plaintiffs or the courts. (20) The other four reasons offered for withholding the documents relied on hearsay rules. (21)

Prior to the district court's decision, several district and appellate courts had issued important rulings on access to government documents considered too sensitive, privileged, or secret to be shared with a private plaintiff. Judges concluded that the documents should be given to the court to independently determine and verify whether the government had accurately characterized the contents. (22) A district court decision in 1944, United States v. Haugen, involved a national security dispute. The issue was whether a private company was a government contractor in the secret defense project at Hanford, Washington, a project designed to create fission of uranium derivatives and the construction of an atomic bomb. To show that the company was indeed a federal agency, the government needed to produce the contract, but the original was with the General Accounting Office in Washington DC. As a substitute, the government tried to rely on oral testimony from a major, and the district judge initially found that acceptable: "The right of the Army to refuse to disclose confidential information, the secrecy of which it deems necessary to national defense, is indisputable." (23)

Can the government prosecute someone on the basis of a document it refuses to release? The court proceeded to ask whether "secondary evidence" (not the contract but the oral testimony of the major) was admissible in a courtroom. (24) It found it unsatisfactory to rely on "a copy of the copy." (25) Because the government had "failed to present the best evidence available to it," the judge concluded that he should have sustained the initial objection to the major's testimony. Without such evidence, the government had failed to sustain its claim that the company was an agency of the United States. (26) The court therefore dismissed the government's prosecution. In short, the government could withhold a requested document, but exercising that privilege could come at a price: keep the document and lose the case.

In its appeal to the Ninth Circuit, the government decided to share the disputed document with the trial court. After the district judge dismissed the indictment, the government moved to reopen the case and submit the evidence to the court. (27) The trial then proceeded. The government handed the contract to the court "for its consideration." (28) Having examined the contract, and concluding that the company was an agency of the United States, the Ninth Circuit affirmed the conviction. (29)

Struggles over access to government documents appear in several cases decided in the years leading up to district court action in Reynolds. In Bank Line Limited (1946), the plaintiffs requested a copy of the record prepared by the U.S. Naval Board of Investigation regarding collisions between inbound and outbound vessels of a convoy. The government withheld the record by making a claim of privilege and arguing that disclosure would seriously hamper the administration of the Navy Department. A district court ruled that the plaintiff was entitled to the record. No reasons of national security had been presented to justify the claim...

NOTE: All illustrations and photos have been removed from this article.



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