Thomas R. Spencer and F.W. Rustmann, Jr.State secrets privilege

Thomas R. Spencer
F.W. Rustmann, Jr.

No Nation can function without secrets. Indeed, it is a fundamental characteristic of sovereignty that information vital to the conduct of a nation’s business be kept confidential. The history of civilization is peppered with tales of secrets codes, covert correspondence and closely held military inventions used to vanquish enemies. The control of these secrets is universally the prerogative of the sovereign leader.

In America today, the State Secrets Privilege is the almost unassailable Privilege of the Executive Branch to refuse to disclose secret information to anyone. Moreover, a lawsuit against the government which is based on State Secrets is almost always dismissed by the courts. The Privilege is intertwined with the political history of our country and the contest over the balance of power and liberty.

The American Colonists were steeped in the history of civilization and schooled in the prerogatives of the English Crown— the imposing exercise of which spawned the economic and political disputes leading to the American Revolution. Crown Privilege, which included the “state secrets privilege” was a self-proclaimed and indisputable power of the Crown beyond the reach of the law. The Crown refused to permit its Courts or the Parliament to bridle its unilateral right to withhold information from its subjects. The justification for this royal privilege was the centuries-old belief, binding the social fabric, that the Crown always operated in the interests of its subjects and that State Secrets served the proper administration of the Crown’s responsibilities to the people. Since the Crown was the sole determiner of what was in the public interest, neither a Court nor a Parliament could overturn or debate that determination.

In the discussions and arguments over the construction of America’s new form of government — unknown and untested in history, the drafters were wary of the concentration of power. Checks and balances on each Branch of government were demanded as a reaction to the autocratic sovereignty just thrown off in war. Yet the framers knew that secrecy was fundamental to government. They assumed that the Executive Branch, as the administrative Branch, would house the new nation’s secrets privilege and saw no need to specify its existence, its exercise or fashion its limits. After all, in their view, the Legislative Branch, itself divided into two parts, was the premiere, most powerful Branch—it resided in Article I of the Constitution. The Executive Branch was deemed secondary( hence Article II) and the Judicial Branch the weakest ( Article III).

Bitter political arguments over the power of the new government festered in the elections following the adoption of the new Constitution in 1787. Partisan feuds smoldered in a second political revolution, bursting into the election of 1800— Thomas Jefferson versus then President John Adams. Jefferson barely won the nasty election and John Adams paid him back by packing the courts and commissions, prior to the end of his term. This led to the 1803 case of Marbury v. Madison, in which Justice John Marshall declared that the Constitution, despite the absence of specific language, implied that the Courts had the final power to review actions of the Executive Branch for legality. It was a bold and gigantic grasp of raw political power. But so delicate and incendiary was the political balance at the time, that neither Jefferson nor Congress challenged Marshall’s opinion.

In a second Constitutional crisis, President Jefferson in 1807 charged Aaron Burr with Treason concerning Burr’s activities in the Louisiana Territory, a territory Burr allegedly tried to grab for himself. The Judge who assigned himself to the Treason case was Jefferson’s cousin and political enemy, Justice Marshall. Burr requested to subpoena secret documents from President Jefferson. Marshall issued the subpoena. President Jefferson, still burning from the Marbury decision, refused to comply with the subpoena as a matter of principle, raising, in effect, the State Secrets Privilege, which he said was implied as a necessary component of the Executive Branch functions. Justice Marshall was wary of pushing the issue. Moreover, Jefferson avoided the crisis by producing some of the requested documents voluntarily “for the justice of the situation.” Marshall exonerated Burr thereby avoiding the collision with Jefferson and the State Secrets Privilege.

Almost 70 years after the Trial of Aaron Burr, President Lincoln personally retained the services of a spy during the Civil War. He promised the spy compensation for information on certain Confederate military operations. After Lincoln was assassinated and the spied had died, his family made claim for compensation. The government denied the claim. The family sued and the case, Totten v. United States, made its way to the Supreme Court in 1875. The Court turned down the claim, deciding that any claim in court which relies on the disclosure of State Secrets, may not be maintained and must be dismissed. This precedent is still the law today.

In 1953, the State Secrets Privilege faced its third challenge. An Air Force B-29 aircraft crashed in Georgia killing the entire crew. The families of the crew sued the government, claiming negligence in the maintenance of the aircraft. The Air Force refused to produce any of its records or recovered materials, even after a Court Order required it, claiming that the Executive Branch could refuse even the courts based on the State Secrets Privilege. The Supreme Court sustained the government and its privilege in Reynolds v. United States, holding that the privilege must be raised in court and that a judge has the right only to determine whether the privilege has been properly raised. The Court ruled that courts should not force disclosure to review the propriety of the Privilege; else the purpose of secrecy would be lost. This decision has never been modified or vitiated by the Court.

Today, the President categorizes secret information, classifying it into a hierarchy of the damage to the nation if disclosed. “Confidential information” is the lowest category of State Secrets and “Top Secret” is the highest. In reality, there are many levels within the “Top Secret” category; but those levels and who has access are frequently State Secrets themselves !

The State Secrets Privilege frequently collides with other concepts which are equally important to American values. Personal liberties and Freedom of the Press are just two collision points frequently debated and sometimes litigated. Citizens, Media, politicians and courts have been historically concerned over the validity of the use of the Privilege. After all, the Privilege could easily be used to cover up crimes, unethical or corrupt conduct.

Lawsuits are increasingly filed against the President seeking disclosure of secret information. Congress has attempted many times, especially lately, to impose by legislation limitations and procedures on the President in his use of the Privilege. Thus far, all legislative attempts have failed. However, the Department of Justice has recently announced a new policy of only withholding secret information in cases if the disclosure would “significantly harm” national security. Now, only the Attorney General personally will make the final decision on the use of the Privilege in courts. Recent court decisions demonstrate that the sanctity of the Privilege, first used by Thomas Jefferson in 1807, is very much intact today. The courts are extremely reluctant to force disclosure when the President has decided that the nation’s security could be compromised.

Thomas R. Spencer is a Miami lawyer. He concentrates in international business, commercial litigation, governmental litigation and international arbitration. Spencer regularly represents Intelligence Officers of the Clandestine Service.

F.W. Rustmann, Jr. is a 24 year veteran of the Central Intelligence Agency’ s Clandestine Service, retiring as a member of the elite Senior Intelligence Service. He is the founder and Chairman of CTC International Group, Inc. of West Palm Beach, Florida. CTC is a leading provider of business intelligence, legal support and analysis . Among other assignments, Rustmann was an instructor at the CIA’s covert training facility known as “The Farm.” He is the author of CIA, Inc.:Espionage and the Craft of Business Intelligence ( Brassey’s 2002).