From Crown Privilege to State Secrets1

A. Origins in Crown Prerogative

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. 70 But the mode of origin is instructive and provides a different color to the background of the privilege than one might expect. Seventeenth century public discussions of the privilege centered on crown prerogative to detain citizens in custody without showing cause. In the turbulent regime of Charles I we see the beginning of a theoretical foundation for crown privilege. Prior to Charles I there is little evidence of discussion of crown power to prevent disclosure of secrets of state. Such a power certainly was not open to serious question, and it is only with Charles’ claims that prisoners could be held at prerogative for unexplained reasons that crown power to withhold information became controversial.

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. 71 William Blackstone defined the term “prerogative” as that which is “out of the ordinary course of the common law” and refers to “those [powers] which [the crown] enjoys alone . . . and not to those which [it] enjoys in common with any of [its] subjects.” 72 Of course, when prerogative-based acts infringed on citizen liberty or property rights, Parliament and judges often clashed with the crown. But the power to withhold information was at the core of crown prerogatives. It was a power not available to other actors, served to protect the most important functions of the state, and was claimed to be necessary to secure the public interest.

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.” 73 No prerogative relies on this maxim more than crown privilege, for the basis of its assertion is that it is necessary for the efficient functioning of the government or even the continued existence of the state. Despite its importance and its centrality to proper functioning of government, the prerogative of crown privilege was not generally discussed or recognized in early works and compilations concerning royal prerogatives. For example, nothing in the Prerogativa Regis 74 relates to a privilege to protect information or secrets of state, and none of the standard law texts of the seventeenth or eighteenth centuries cite to a prerogative against disclosure of information or the protection of state secrets. Nevertheless, Sir Edward Coke notes in The Institutes that the third clause of oath for Privy Councilors states that:

[H]e shall keep secret the king's counsell, and all that shall be commoned by way of counsell in the same, without that he shall common it, publish it, or discover it by word, writing, or in any otherwise to any person out of the same Councell, or to any of the same Councell, if it touch him, or if he be party thereof. 75

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.” 76 And in 1571, Queen Elizabeth I warned members of Parliament that “they should do well to meddle with no matters of State, but such as should be propounded unto them, and to occupy themselves in other matters, concerning the Common-Wealth.” 77 Likewise, James I in 1620 told Parliament: “We discharge you to meddle with Matters of Government or Mysteries of State” 78 and lectured Parliament and public in a proclamation:

. . . forasmuch as it comes to Our eares, by common report, That there is at this time a more licentious passage of lavish discourse, and bold Censure in matters of State, then hath been heretofore, or is fit to be suffered, Wee have thought it necessary, by the advice of Our Privie Councell, to give forewarning unto Our loving Subjects, of this excesse and presumption; And straitly to command them and evry of them, from the highest to the lowest, to take heede, how they intermeddle by Penne, or Speech, with causes of State, and secrets of Empire, either at home, or abroad, but containe themselves within that modest and reverent regard, of matters above their reach and calling, that to good and dutifull Subjects appertaineth. 79

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

B. The Affairs of 1628

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.” 80 And in Ruswell's Case, King's Bench held “that a return that one is committed per Mandatum Privati Concilii Domini Regis [by order of King's Council] was good enough, without returning any Cause; for it is not fit that Arcana Imperii should be disclosed.” 81 But Coke had divided opinions on this matter, 82 noting:

God forbid they should not be known to them, who are to be judged by them: but the keeping them in such secrecy bewrayeth, that the Council are afraid that they would not be justified if they were known; and it was concluded again, misera servitus ubi jus aut vagum aut incertum. [It is miserable slavery where the law is vague or uncertain]. 83

And over eighty years prior to the disputes of 1628, Binck's Case took up detention for felony and for matters of state. 84 The court concluded that since the felony charge was first listed, all that followed must be of lesser seriousness, and therefore the defendant, if bailable on the felony, must also be bailable under charges concerning matters of state. The Binck's court seemed to take the strict line that a failure to return cause for detention allowed judges sole discretion to determine bail. This principle was reaffirmed in Codd v. Turback 85 a mere twelve years before the great debate began around crown-ordered detentions in Darnel's Case. 86 There, the court found that “By the law of God, none ought to be imprisoned, but with the cause expressed in the return of his imprisonment, as appeareth in the Acts of the Apostles.” 87

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.” 88 The King did not object to the petition; his silence interpreted as assent. 89

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. 90 The detainees claimed that courts could acquire jurisdiction over cases where subjects are detained “per speciale mandatum Domini Regis [by special order of the King],” and that imprisonment under such an order without further, particular cause shown “was too general, and uncertain; for that it was not manifest, what kind of command that was.” 91 They further claimed that “Nothing passes from the Crown without matter of record,” and one could not be imprisoned or continued in prison on the mere verbal command of the King; action in trespass would lie against those executing such command. 92 In response to these challenges the Attorney General particularly seized on the duty and prerogative of the crown to prevent the disclosure of state secrets:

The King often commits, and shews no cause: if he does express the cause, indeed to be either for suspicion of felony, coining, or the like, the court might deliver the prisoner, though it was per speciale mandatum Domini Regis, because there is no secret in these cases; for with the warrant, he sends the cause of the commitment: but if there was no cause expressed, that court always remanded them. It was intended, there was matter of state, and that it was not ripe, or time for it to appear. . . there were Arcana Imperii, which subjects were not to pry into. If the King committed a subject, and expressed no cause, it was not to be inferred from thence, there was no cause for his commitment: the course has always been, to say there was no cause expressed, and therefore the matter was not yet ripe; and thereupon the courts of justice have always rested satisfied, and would not search into it. In this case, the King was to be trusted: it was not to be presumed, he would do anything that was not for the good of the kingdom. 93

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].” 94 Expanding on this point, the Attorney General ventured that “Explanations would hazard an encroachment on [royal] prerogative,” 95 and “That if a man was committed by the commandment of the King, he was not to be delivered by a habeas corpus in that court, for they knew not the cause of his imprisonment.” 96 The specific hypothetical cited in support of these contentions concerned protection of state secrets:

If a King employ an ambassador to a Foreign Country or State, with instructions for his Negotiation, and he pursue not his instructions, whereby dishonour and damage may ensue to the Kingdom, is not this committable? And yet the particular of his instruction, and the manner of his miscarrying, is not fit to be declared to his Keeper, or by him to be certified to the Judges, where it is to be opened and debated in the presence of a great audience. I therefore conclude, for offences against the State in case of State Government, the King and his Council have lawful power to punish by imprisonment, without shewing particular cause, where it may tend to the disclosing of the secrets of State Government. 97

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. 98

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.” 99 And some 50 years after the events of 1628, Sir Harbottle Grimstone noted: “For matters of State, it is convenient that the person committed should be restrained; but if so, he is not to be buried alive, to have no man come at him. How then can he get his Habeas Corpus, or prepare for his defence?” 100

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.

C. Development of the Privilege Post-1628

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. 101 And in Layer's Case, counsel for a defendant charged with high treason insisted on having minutes of a Privy Council meeting read into the record in open court. Lord Chief Justice Pratt noted that “I . . . asked Mr. Attorney General, whether he thought fit to consent to it; and without his consent we are of opinion, that they cannot be read . . . You cannot read the minutes taken against the king, because these matters are not ripe yet, nor to be discovered to the world.” 102 In R. v. Watson a public official was asked to testify as to the accuracy of a plan of the Tower of London, which had been purchased from a public vendor. Lord Ellenborough thought “It might be attended with public mischief to examine an officer of the tower as to the accuracy of such a plan.” 103

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.” 104 The path was not always so clear for the assertion of privilege, and in some cases witnesses were made to answer, and documents were ordered produced. For example, in The Earl of Strafford's Trial in the House of Lords, accounts of statements Strafford made in Privy Council were allowed into evidence, prompting Lord Clarendon to opine:

The ruin that this last act [of producing this testimony] brought to the King was irreparable; for . . . it was [a] matter of horror to the counsellors to find that they might be arraigned for every rash, every inconsiderate, every imperious expression or word they had used there; and so made them more engaged to servile applications. It banished forever all future freedom from that board and those persons from whom his Majesty was to expect advice in his greatest streights; all men satisfying themselves “that they were no more obliged to deliver their opinions there freely, when they might be impeached in another place for so doing.” 105

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.” 106 Unimpressed, the court said that it would be improper to subject the books to “curious and impertinent eyes; but, at the same time . . . [h]umanity requires [evidence in the hands of the state] should be produced, when in favour of a criminal, justice when against him.” 107 The court ended by lecturing Hastings, saying that “where justice shall require copies of the records and proceedings, from the highest court of judicature, down to the court of Pie-Powder” magistrates have the power to compel disclosure. 108

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.” 109 This case was not a suit at law, but an action for discovery to determine just which entity should be sued for breach of contract. The East India Company argued not only that they were sovereign, but employees were sworn to secrecy and could not be compelled to divulge secrets of the Crown. Master of the Rolls Sir Lloyd Kenyon agreed that the East India Company exercised sovereign power, but he decided to:

[P]ut the East India Company and the defendant Moodaly upon the same footing. In ordinary cases, it is usual for this Court to grant discovery, auxiliary to a Court of law, and to grant commissions to examine witnesses. It hath been said, that the East India Company have a sovereign power: Be it so; but they may contract in a civil capacity: It cannot be denied but in a civil capacity they may be sued: in the case now before the Court, they entered into a private contract; if they break their contract, they are liable to answer for it. 110

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. 111 Judges approached matters of state secrets the same as matters concerning confidentiality of informer identities, or allegedly defamatory reports generated by government officials, or any other reason cited by the crown in support of withholding. The standard that developed, which was not much of a standard at all, was whether the disclosure of the requested documents would damage the “public interest.” 112

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. 113

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. 114

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. 115 In Anderson v. Hamilton, for example, Lord Ellenborough declined to allow “secrets of state to be taken out of the hands of her majesty's confidential servants.” 116 Other judges in the Kingdom, though, chafed against such a gift of power to the ministerial branches of government. In Gugy v. Maguire government asserted the privilege after a Provincial Secretary's refusal to produce a report of a superintendent of police. Judge Mondelet strongly objected to the assertion of the privilege and specifically the line of reasoning in Bentinck:

I cannot, I ought not, for a moment, as a judge living and administering justice under constitutional institutions, admit such a monstrous doctrine – a doctrine which prostrates to the ground that liberty, that protection to life, honour, property, and to civil and religious liberty, which this country has so much right to boast of, too valuable to be thus thrown away and scattered to the four winds of Heaven! A doctrine which reduces the judge on the Bench to an automaton, who, like the statue of Don Juan, will bend at the bidding of any reckless politician, whatever shade of politics or party spirit, it may be his misfortune to be tainted with, or of any unprincipled member of society . . . who is desirous of, or has interest in being screened, or of screening others, from the responsibility his misdeeds have subjected them to. If that doctrine be law, or rather, were law, it would be appalling. It would be such that no one would feel himself secure. I cannot, I must not assent to it. It is not law. It is unconstitutional. It is tyrannical. It is monstrous. 117

The most expansive explanations concerning crown privilege after Bentinck came in Beatson v. Skene and Duncan v. Cammel, Laird. 118 In Beatson, Chief Baron Pollock, in a speech for a unanimous panel of Law Lords, found: “We are of opinion that, if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice.” 119 Then Pollock took up the crucial question of who is to have the final say on what constitutes the “public interest.” He concluded that:

The judge would be unable to determine [the question of public interest] without ascertaining what the document was, and why the publication of it would be injurious to the public service – an inquiry which cannot take place in private, and which taking place in public may do all the mischief which it is proposed to guard against. It appears to us, therefore, that the question, whether the production of the documents would be injurious to the public service, must be determined, not by the Judge but by the head of the department having the custody of the paper; and if he is in attendance and states that in his opinion the production of the document would be injurious to the public service, we think the Judge ought not to compel the production of it. 120

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. 121 There, relatives of sailors killed in the sinking of the submarine Thetis, sued the submarine's manufacturer and requested production of design documents and other papers. Quoting Attorney General v. New-Castle-Upon-Tyne, the court noted “The law is that the Crown is entitled to full discovery, and that the subject as against the Crown is not… That is a prerogative of the Crown, part of the law of England, and we must administer it as we find it.” 122 In reaffirming the bright lines announced by Pollock in Beatson, the court found that “The reasons given by Pollock C.B., by Lord Dunedin and by Lord Kinnear cannot be gainsaid.” 123 The decision went on to approvingly quote Lord Parker's observation in The Zamora, that “Those who are responsible for the national security must be the sole judges of what the national security requires.” 124

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.” 125 The law lords then leaned heavily on the case of Earl v. Vass for the proposition that ministers may not be compelled to produce documents when claiming a public interest exception. 126 As related below, the decision in Vass was wrong. Thus, in an apparent effort to grasp support for their position the lords in Duncan misunderstood Vass, and in the process simply gained an incorrect understanding of Scottish law on the matter of crown privilege. While not precisely causing ruinous effects for either Scottish law or American law, the decision in Duncan did have some influence on the Court in Reynolds, if for no other reason than the mistaken representation that Scottish law and English law were in agreement on the subject of ministerial power to withhold documents. The spirit of Duncan broadly informed the Court's decision in Reynolds, but it is a spirit founded on a mistake ‒ and that mistake is still with us.

D. Divergence Between Scottish and English Law

Scottish law developed in quite a different manner to that in England concerning crown privilege. 127 The law of the two countries diverged substantially on the issue of ministerial power to withhold papers, and that divergence, through an unfortunate set of mistakes, was overlooked by the law lords in Duncan. Two cases beguiled English courts into a thorough misunderstanding of Scottish law with respect to crown privilege. First is Earl v. Vass, discussed above. Vass is hardly a stout decision to rest on for the proposition that ministerial decisions are conclusive on courts. Lord Eldon, L.C., sat alone in the case, and counsel for Vass put in no argument, so the matter was heard ex parte. Lord Eldon consulted with Lord Chief Justice Charles Abbott concerning the matter, even though Abbott had no expertise in the law of Scotland. Eldon also once expressed the extreme position that “the Crown cannot waive the right to withhold documents.” 128 Finally, he made reference to English cases such as Home v. Bentinck, so it is unsurprising that his decision was at variance with Scots law.

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.” 129 Yet on the edge of declaring ministerial objections as conclusive on the courts, Eldon does not quite make that claim. Perhaps he felt some uneasiness with making such a declaration with respect to the law of Scotland, and that uneasiness would be well founded. In Scotland, the rule has always been that judges are the final authority in determination of crown privilege claims, and Scottish courts have shown little patience with transparent efforts to shield the government from embarrassment, liability, or investigation. 130 Indeed, Viscount Symonds wrote in Glasgow v. Central Land Board that “it is in fact a repugnant task for those who are charged with the administration of justice to determine the rights of parties with something less than the full knowledge of all the material facts and documents. . . But that such may be [the judge's] task is beyond all question.” 131

Second, English judges relied on the decision in Admiralty v. Aberdeen Steam Trawling and Fishing Co. 132 Courts incorrectly used Aberdeen to support the proposition that English and Scottish courts were in alignment on the finality of ministerial certificates in asserting crown privilege. Lord Dunedin did write in Aberdeen that,

It seems to me that if a public department comes forward and says that the production of a document is detrimental to the public service, it is a very strong step indeed for the court to overrule that statement by the department. The Lord Ordinary has thought that it is better that he should determine the question. 133

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. 134

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.” 135 But Lord President Dunedin also backed the idea that “The crown in Scotland is . . . in the same position as a subject with regard to diligence for the recovery of documents: with this distinction, that as public policy is always a ground for the court refusing to order production of documents, that ground is available to the crown more readily than to a private citizen.” 136

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.” 137 The Duncan court came to the wrong conclusion about the decision in Aberdeen. Perhaps because they already believed the legal systems of Scotland and England were aligned on this issue, they simply saw what they expected to see. Contrary to Duncan, the law of Scotland has never been in alignment with England in respect to crown privilege.

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. 138 And in Leven v. Board of Excise the court granted a diligence for records in the face of objections that the “documents called for had come into their hands in their public capacity, they were bound to decline undergoing any examination on the subject.” 139 The court in Leven v. Young, in an unequivocal statement, observed in 1818 that “It is not to be understood that the court have any doubt of their power to compel any haver to produce evidence. [It is for the court to] decide if a document is to be produced.” 140

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.” 141 Scottish courts adopted a balancing approach to determine rulings concerning the assertion of crown privilege, an approach expressly rejected by the weight of English authority on the matter. As discussed above, in England the power of conclusory objection to production of papers to preserve the public interest lodged in the minister raising the objection. This is substantially both a transfer of judicial power to ministers, and an abdication of the courts in a broad area of evidentiary discovery. Balancing is also contrary to the state secrets privilege as adopted by the United States, where it is an “absolute” privilege that applies without fail when properly asserted. 142

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,” 143 “an exceptional case,” 144 “an appropriate exceptional case,” 145 or something much less. 146 The meanings of those phrases are left unexamined, and judges proceeded on a case-by-case basis in determining the deference to give to assertions of crown privilege. From this record it is a reasonable conclusion that courts in Scotland retained final authority on the assertion of a crown privilege or public interest objection.

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 147 dismantled Duncan both as a matter of Scottish law and English law. Glasgow is the most complete treatment of the law of crown privilege in Scotland, and it put to rest any notion that the law of Scotland and England agreed on the matter of public interest privilege.

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.” 148 As a preliminary matter, the lords noted that“[I]t would be clearly improper for this House to treat the law of Scotland as finally determined by a decision upon an English appeal unless the case arose upon the interpretation of a statute common to both countries.” 149 In other words, Scottish common law matters and statutes not replicated in English law are to be left to Scottish courts. In a capitulating statement by the Law Lords, at least so far as the vanities of Duncan are concerned, the Lords noted: “It may be that the existence of an inherent power in the Court of Scotland provides an ultimate safeguard of justice in that country which is denied to a litigant in England. If so, this House sitting as the final Court of Appeal from the Courts of Scotland will be jealous to preserve it.” 150

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.” 151 Lord Norman likewise said it is “a firmly established rule that in Scotland the court has power to override objection of a Minister or head of a government department that the production of a document would be contrary to public interest.” Lord Norman added this “is not a phantom power” and that “in the last resort it is a real, though imperfect, safeguard of justice.” 152

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].” 153 He noted that “it is a very strong step indeed for the Court to overrule that statement by the Department,” yet “[w]e must either say that it is a good ground of objection, or we must overrule it altogether.” 154

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. Burr v. United States

A detailed investigation of Burr is unnecessary, for that has been ably accomplished by other commentators in recent years. 178 Burr was charged with treason for making war against the United States and inciting insurrection, and at trial he demanded letters in the possession of President Thomas Jefferson. Chief Justice John Marshall heard the case in his circuit judge capacity and had to wrestle with the question of whether he had the power to issue a subpoena for documents against President Jefferson. On the one hand, Marshall apparently feared expressing disrespect toward the office of the presidency, which probably really means a fear of being ignored if a subpoena were to issue. On the other hand, failure to issue the subpoena for documents pertinent to Burr's defense would seem as if Marshall had capitulated to executive power. In one exchange, attorney 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?” Justice Marshall responded that “he should be sorry to require an answer which would state the opinions of the Government.” 179 To the relief of Marshall, President Jefferson communicated his willingness to make the letters available, though he reserved “the necessary right of the president of the United States to decide, independently of all other authority, what papers coming to him as President the public interest permits to be communicated, and to whom.” 180 The “independent of all other authority” language appears to be the first clear expression by a President of an ultra-constitutional privilege of state secrets lodged in executive power. Later in the trial, Attorney Wickham, counsel for Burr, said he had asked for the U.S. convention with the Spanish commandant, but was told it was a state secret. 181 Justice Marshall said he would not compel production of the convention “unless its bearing on the case can be shown.” 182

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. 183 Liberty at trial was taken by both sides in casting the issue of whether papers could be withheld under a privilege of state secrets. Defense counsel John Wickham incorrectly claimed that “In England, nothing is more common than for the most secret transactions to be disclosed in a court of justice.” 184 Here he somewhat disingenuously seemed to be referring to cases concerning papers of private concerns and not papers held by the government. Attorney General Hay countered Wickham's ill-conceived statement by claiming that “We are not at liberty to dive into the secrets of the Executive Department to know what orders they give to their agents, and to proclaim those orders to the world – orders which were given for the public good.” 185 Hay concluded that “There can be no doubt but that the public good does require that various orders of the Government should forever remain a secret.” 186

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. 187 When defense counsel wanted to examine Wilkinson on this practice, Attorney General Hay intervened, claiming that the matter was between two citizens and irrelevant to the case at hand. 188 Insisting upon this line of questioning, Burr's defense claimed that the illegal acts by Wilkinson would undermine his credibility as a witness. 189 At the same time implying that Wilkinson acted outside of government instruction, Hay brought him back under the protection of government by making perhaps the first argument for a national security exception to the Constitution to appear in a reported case:

It has been the constant effort of the counsel on the other side to identify General Wilkinson with the Government. We have heard of the plundering of the post offices, violating oaths, and prostrating private rights. Now it is asked if the Government approved of these acts. Is it decorous, is it proper, to pursue this course? They may ask questions to implicate General Wilkinson, but is it proper to endeavor to cast an imputation upon the Government? I feel no solicitude on the subject; for when all the circumstances are considered, and the real situation of that country understood, though I will not say that the measures were strictly lawful, yet I will say the exigencies of the times called for them; and that the person who held the high and responsible situation of General Wilkinson was bound to pursue the course which he did. 190

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? 191

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. 192

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.” 193 Wickham claimed that “no State secrets should prevent the production of every paper necessary for [Burr's] defence,” 194 whereupon Marshall refused to compel production of the document “unless its bearings on the case be shown.” 195 Apparently, Marshall stood ready to compel production of a document claimed to be a state secret if it was necessary to the case for the defense.

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.” 196

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. 197 But Justice Gorsuch seems to have the correct perspective on the case when he writes in his dissent that “[s]ince Burr, this Court has held that the Executive must do more than assert a harm to national security ‘might’ follow from producing evidence.” 198

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.

B. Totten v. United States 199

The Totten decision makes no reference to Burr. Considering that courts refer to these two cases as waypoints 200 in an admittedly sparse history of state secrets jurisprudence, it is odd that the second post in that line would make no reference to the first. It seems unreasonable to attribute to the Court a studied or even vaguely realized jurisprudence of state secrets.

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. 201 Mr. Justice Field wrote the headnote to the case, and identified the narrow holding as “An action cannot be maintained against the Government, in the Court of Claims, upon a contract for secret services during the war, made between the President and the claimant.” 202 The function of Totten is not to protect secret information from disclosure, but to protect the government from being dragged into a public airing of what, for the time, were sordid affairs. Contemporaneous reporting on the oral argument to the Supreme Court in the case by The New York Times, mentions nothing of secrecy. Only two arguments on behalf of the United States were noted. First, the government claimed that the action was time barred, “inasmuch as the means which were open to the spy to send information were also open to him through which to collect his pay, and he did not avail himself of the opportunities as they presented themselves.” 203 Second, the government agreed with the reasoning of the Court of Claims “that there was no power” to remedy the breach “without the appropriation” of funds made specifically for the contracted purpose, and that “such a contract made no case for a suit in that Court.” 204 It appears that the issue of secrecy concerning either documents or testimony was not briefed or argued in the case.

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.” 205 And that “The secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery.” 206 These are odd things to say if the case truly concerned state secrets.

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. 207 It might also be a fair resort to recouping money not paid by the government on contract by selling lurid stories to the press. Lloyd's lips were only sealed because by the time of the appeal to the Supreme Court he was dead. Finally, it makes little sense to say that suing on a contract for espionage services is itself a breach of the contract when the Court concludes that the contract itself may not be sued upon for breach.

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. 208 Totten did note that “[i]t 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.” 209 But the reference here is to confidentiality and not secrecy or a constitutional power of the President to withhold information from disclosure. This is made clear by the sentence immediately following the above quote, which provides examples of the types of confidentiality the Court had in mind: “On this principle, suits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband and wife, or of communications by a client to his counsel for professional advice, or of a patient to his physician for a similar purpose.” 210 And in veering the decision back to the issue of secret contracts, the Court concludes in the closing sentence of the opinion that “much greater reason exists for the application of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be disclosed.” 211 Totten is not a state secrets case.

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. 212 In Hepting v. AT&T, a case concerning AT&T's cooperation in a “terrorist surveillance program,” the district court considered, and rejected, the government's reliance on Totten. 213 This rejection was not surprising considering that the plaintiff was not in contractual privity with the government, the whole world seemingly believed there was an intelligence relationship between AT&T and government, and publicly available evidence pointed to such a relationship. The government even admitted to such a relationship, and AT&T freely acknowledged that when asked by the government to cooperate in intelligence operations it does so. 214 In Hepting, to bar the case by aggrieved third parties under Totten based on a “secret” contractual relationship between the government and private corporations is to defeat the Fourth Amendment through a formalism one would suspect had long been dead in the law. Similarly, the Ninth Circuit rejected a Totten claim in Mohammed v. Jeppeson Data Plan since not all of the plaintiffs’ averments required reference to secret contracts. 215 In that case, foreign nationals alleged kidnap and torture by the U.S. government. The court found that since the kidnapped victims were outside the contractual agreement, Totten did not bar the action. 216 In the first sentence of the opinion the court writes:

This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them. 217

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. 218 In that case the Second Circuit Court of Appeals upheld dismissal of the action but reversed on the grounds for dismissal. The court held that although the action should be dismissed, the case “need not be resolved on whether judicial proceedings would necessarily divulge classified information to the public.” 219 Other than this orphaned district court decision there is no case law to indicate that the Totten Bar is applicable against a plaintiff not in privity with the government for secret contractual services.

C. United States v. Reynolds 220

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). 221 The plaintiffs sought production of the official accident investigation report, whereupon the government moved to quash the motion for production claiming that disclosure of the document was protected under Air Force regulations. 222 The district court denied the government's motion, finding that the FTCA had waived the claim of privilege in such cases. 223 When ordered by the court to produce the documents for inspection to determine if they contained privileged information the Air Force refused to comply. 224 The district court insisted that the government submit the accident report to the court for review, with the understanding the court would not share the document with widows of the deceased or their attorneys. 225

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. 226

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. 227 The Government contended on appeal “that it is within the sole province of the Secretary of the Air Force to determine whether any privileged material is contained in the documents and that his determination of this question must be accepted by the district court without any independent consideration of the matter by it.” 228 Although the Third Circuit found that “State secrets of a diplomatic or military nature have always been privileged from disclosure in any proceeding,” in camera inspection by the trial judge would be sufficient to protect such secrets from disclosure while allowing the judge to determine that the privilege is correctly asserted. 229 It is unclear the grounds the Third Circuit had for making such a statement. One suspects at this moment, the government felt a keen urge to prevent the embarrassment that would occur if the accident report were to be produced for in camera inspection.

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. 230

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. 231 Had the district judge and the Third Circuit seen the report, they would have decided in favor of the three widows. The district court and the Third Circuit understood the weakness of the administration's position in refusing to allow the district judge to view the accident report in camera. Moreover, by the time the widows decided to return to the Supreme Court, the Justices understood the accident report (now public) contained no state secrets. The Court nevertheless ignored executive branch deceit and settled on an approach that emulates the results of Duncan. After the Reynolds report became public, the Court refused to revisit the case.

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. 232 There the Court found publicly available information may be excluded at trial at invocation of the state secrets privilege. In the words of Justice Gorsuch:

The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the Court acquiesces in that request. . . [W]e should not pretend it will safeguard any secret. 233

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. 234 The Court sectioned off national security from “public interest” and perhaps thought that would contain the range of the privilege. This redeeming quality is erased when the rubric of national security is expanded to cover a broad range of government activity. We do have a public interest exception, and it is termed “national security”: it turns out that “national security” in the modern world is multifarious and legally agile. 235

Since classificatory power is solely in the hands of the executive branch, the impulse to classify out of habit rather than necessity is common. 236 Judges in the United States have a responsibility in determining the nature of the privileged material that English and Scottish judges did not bear. Indeed, since there were no national security interests revealed in the information requested by the plaintiffs in Reynolds, the motivating factor for cover-up by the Air Force was a fear of embarrassment and liability for gross negligence in maintenance of the aircraft that crashed. 237 This fact, when publicly revealed, should have given the Court caution in blindly acquiescing to assertions of the privilege. No such caution developed; quite the opposite, as demonstrated in Zubaydah. To the present, the U.S. government asserts that characterizing Reynolds as anything other than a valid and sincere use of the state secrets privilege is false. In a 2014 brief the government wrote: “[A] ny suggestion that the state secrets privilege assertion in [Reynolds] was shown to be improper after documents relevant to that assertion were later declassified. . . is incorrect. In fact, over fifty years after the assertion in Reynolds, federal courts reaffirmed the validity of the Reynolds assertion.” 238 The fact that courts still adhere to Reynolds does not mean that Reynolds was not a fraud on the court. It only means that the Supreme Court finds it judicially inconvenient to challenge the executive branch in the realm of national security.

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.” 239 They state the obvious: use of the privilege is now formalistic, and courts are to take its invocation as a presidentially-determined demarcation of the limits of justiciability.

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” 240 and noted that “[w]hen the Crown . . . is a party to a suit, it cannot be required to give discovery of documents at all. . . No special ground of objection is needed.” 241 Understanding of the state secrets privilege developed in Reynolds, by contrast, does not embrace a constitutional principle. Rather, it is a pragmatic device that works to both protect national security information and to provide courts with a way to avoid confrontation with executive branch power over claimed national security matters. 242 These distinctions limit the operation of the privilege, emplace the courts as the final authority as to when the privilege is correctly asserted, and transform the constitutional, principle-based privilege of English law into the pragmatic, fact-driven privilege of American law. Yet as the Zubaydah decision made clear, we find ourselves in a pre-Conway world of crown privilege with a presidency transformed into monarchical status through the lenses of national security and the remnants of crown privilege in the common law.

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.” 243 He said what others only think: “there is very rarely any real risk to current national security from the publication of [classified] facts relating to transactions in the past, even the fairly recent past” and that classification power is greatly misused at a cost to courts and justice.

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. 244 This is a direct encroachment on judicial authority, and forces federal courts to yield to secrecy formality rather than maintain the dignity and constitutional importance of judicial independence.

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.” 245 To accept this is to accept presidential control over justiciability whenever the executive branch wishes to assert the privilege. This ignores that the privilege is meant to be an evidentiary privilege, not an incantation to dispel legal actions. The government essentially claims that the privilege amounts to a jurisdictional bar where it is asserted. This is not what the privilege contemplates, even if that is what it has become as a matter of practice.

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 246 Attorney General Holder claimed:

[T]he state secrets privilege in this case is not limited to certain physical documents that Plaintiff seeks to compel through discovery, but rather covers evidence and information that would be needed to litigate the claims presented in this lawsuit in whatever form it appears, i.e., whether that evidence or information is reflected in the documents at issue in discovery, in other documents, or in any testimony that might be presented to establish claims or defenses. Thus, an assessment of the privilege assertion encompasses not just the information set forth in the four corners of a particular document, but also the broader context of the privileged information which that document reflects. 247

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” 248 One might ask where the logical limit is to this kind of privilege. Attorney General Holder also complained of a judicial order that “appears to circumscribe the scope of [the government's] assertion of the state secrets privilege… by focusing on the specific documents” sought by the Plaintiffs in discovery, and then finding those documents insufficiently sensitive to be privileged on state secrets grounds. 249 Government counsel added, “an assessment of the privilege assertion encompasses not just the information set forth in the four corners of a particular document, but also the broader context of the privileged information which that document reflects.” 250 This is a rather plain way of asking judges to forgo their Article III responsibilities in adjudicating state secrets claims.

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. 251

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. 252 The argument is that the presidency sits in a position with functional similarities to the historical British crown. Reynolds at first seems to hold otherwise. As the Court noted: “We have had broad propositions pressed upon us for decision . . . [These] positions have constitutional overtones which we find it unnecessary to pass upon, there being a narrower ground for decision.” 253 The Court here clearly alludes to the United States brief that highlights a strong privilege under crown doctrine. By denying the government's demand for a public interest exception and refusing to treat the matter as even implicating constitutional doctrine, the Court appears to recognize the substantial differences between crown privilege and what shape an American privilege for withholding state secrets must take.

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,” 254 weighing a plaintiff's need for the requested material when deciding on in camera review, and the pursuit of alternatives to allow the case to go forward in the face of a state secrets privilege claim.

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.” 255 Having put courts on notice, the opinion buttresses that warning: while “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege,” it must “do so without forcing a disclosure of the very thing the privilege is designed to protect.” 256 Disclosure to whom, is the important question. Is judicial review of evidence in camera a forced “disclosure”? No: it is at the heart of judicial duties and responsibilities. Yet, subsequent court decisions seem to indeed support the idea that “forced disclosure” includes orders of production for in camera inspection. 257 If so, courts are to strike themselves blind when the privilege is invoked. This is abdication of constitutional duties at the most consequential level. Further, the Court leaves unaddressed the unconscionable fact it was lied to by the executive branch in the very case that spawned the state secrets privilege.

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. 258 In the concluding section of the report it stated: “The aircraft is not considered to have been safe for flight because of non-compliance with technical orders.” 259 In a telling recommendation, the report advises “wherever feasible flight test aircraft be bailed to the commercial concern conducting the test.” 260 That recommendation is apparently motivated by an effort to shift liability to the bailee in case of future accidents causing tortious injury. The district court and the Third Circuit understood the need for judicial independence. The Supreme Court did not. There is nothing in the report that remotely implicates national security. The founding of the state secrets privilege in U.S. law was built on what is often a motivating factor in deploying the privilege – the effort to hide embarrassing or inculpatory information.

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.” 261 Plainly stated, the Court warned that “the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” 262

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. 263 This is especially so in the Reynolds case, where the report is apparently classified as part of a coverup to avoid embarrassment and public scrutiny. In a telling state of affairs, the Justice Department provides a litigation security service for cases tried in federal courts involving contract disputes, bid protests, and patent cases that will require the production and review of classified material and evidence by court personnel and judges. 264 It is also unclear how the government's position as defendant in a tort suit undermines confidence and trust in federal judges’ capacity to guard against disclosure of national security information, when that same judge may be tasked to handle the same sensitive information to settle a contract dispute.

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.” 265 This is an extraordinarily low bar and offers no guidance to lower courts. It is inconceivable that the Court did not understand the implications of such language, and those implications were certainly not lost on Presidents, the military, and government agencies.

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.” 266 The government goes on to pointedly state that “[w]e believe that all controlling governmental and judicial material, here and in England, clearly supports the view that . . . disclosure by the head of an executive department cannot be coerced.” 267 And finally, that in England “the sole arbiter of when the public interest so requires [withholding of documents] is the cabinet minister who heads the department to which the documents belong.” 268

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. 269

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.” 270 What is embarrassing, and surprising, is that the Court would tolerate such condescension.

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. 271

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, 272 the brief explains that:

. . . as the House of Lords pointed out in Duncan: only the department head knows the exigencies of the public service; only widely separated portions of Air Force policy can come into overt consideration in a given litigation; and the fitting together of the scattered pieces can be accomplished only in the day to day decisions of the agency. 273

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.” 274 Nowhere is there a recognition of a judicial role to prevent the legal symptoms of the chronic illness of bureaucracy to engage in secrecy to avoid embarrassment and prevent exposure of incompetence, negligence, malfeasance, and illegality.

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.