State Secrets Privilege

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Article II, Section 3:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In civil cases, the government may invoke the State Secrets Privilege to ensure the government is not forced to reveal military or other secrets. By contrast, in criminal cases, the Sixth Amendment guarantees a defendant compulsory process to obtain witnesses, and the Due Process Clause of the Fifth Amendment guarantees access to relevant exculpatory information in possession of the prosecution.1 Generally speaking, when a judicial order directs the prosecution to provide information to a defendant that the prosecution does not wish to make available, the prosecution has the option of dropping the prosecution to avoid disclosure.2

In 1876, the Supreme Court first recognized the State Secrets Privilege in Totten v. United States.3 Totten involved a breach of contract claim brought by the estate of a former Union Civil War spy against the government for compensation owed for secret wartime espionage services.4 The Court dismissed the claim because “as a general principle, [ ] 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.” 5 The Court reasoned that “[t]he service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed.” 6

Totten has continued to inform the treatment of claims brought against the government. In 2005, the Supreme Court considered a contract claim brought against the Central Intelligence Agency (CIA) by alleged Cold War spies in Tenet v. Doe.7 Affirming the “Totten” bar,8 the Tenet Court stated: “Totten precludes judicial review in cases such as respondents’ where success depends upon the existence of their secret espionage relationship with the [g]overnment.” 9 In 2011, the Supreme Court again applied the Totten bar to dismiss a suit against the United States but this time outside the context of espionage contracts. In General Dynamics Corp. v. United States, the federal government asserted the State Secrets Privilege to prevent disclosing sensitive stealth technology in a defense contract dispute. While the government contractor in General Dynamics had set forth a prima facie valid affirmative defense to the government’s allegation of breach of contract,10 the Court held that the underlying subject matter of the suit rendered it nonjusticiable and the parties must remain “where they stood when they knocked on the courthouse door.” 11 Referring to Totten and Tenet, the Court stated: “We think a similar situation obtains here, and that the same consequence should follow.” 12 In not finding an enforceable contract, the Court held that “[w]here liability depends upon the validity of a plausible . . . defense, and when full litigation of that defense ‘would inevitably lead to the disclosure of’ state secrets, neither party can obtain judicial relief.” 13 The Court reasoned: “Both parties—the [g]overnment no less than petitioners—must have assumed the risk that state secrets would prevent the adjudication of claims of inadequate performance.” 14

In a separate line of judicial inquiry regarding protection of state secrets outside the context of contract claims, the Supreme Court articulated an analytical framework for the State Secrets Privilege in its 1953 decision in United States v. Reynolds.15 Reynolds involved multiple wrongful death claims against the government brought by the widows of three civilians who died aboard a military aircraft that crashed while testing secret electronic equipment.16 The plaintiffs sought discovery of the official Air Force post-incident report and survivors’ statements that were in the possession of the U.S. Air Force.17 The Air Force opposed disclosure of the documents as the aircraft and its occupants were engaged in a secret mission.18

While Reynolds recognized that it is the judiciary’s role to evaluate the validity of a claim of privilege, the Court declined to require that courts automatically compel inspection of the underlying information. The Court stated: “[T]oo much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses.” To evaluate assertions of the State Secrets Privilege, the Reynolds Court identified a two-step analysis. The first requirement is a largely procedural hurdle to assure that the privilege is not “lightly invoked,” in which the head of the department in control of the information in question, after “personal consideration,” invokes the privilege in writing. The second requirement asks the court to evaluate whether there is a reasonable danger that disclosure “will expose military matters which, in the interest of national security, should not be divulged.”

The Supreme Court accepted the government’s claim, holding that courts “must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.” 19 According to the Court, a private litigant’s specific showing of necessity for the information should govern how far the trial court should probe. Where the necessity is strong, the trial court should require a strong showing that the privilege is appropriate, but once that is satisfied, the privilege must prevail no matter how compelling the need.20 While Reynolds dealt with an evidentiary privilege, cases may be “dismissed on the pleadings without ever reaching the question of evidence” in other circumstances.21

While Reynolds and Totten remain the foundational cases on the state secrets privilege, the Supreme Court issued a pair of decisions in 2022 that impact the judicial understanding of that privilege. First, in United States v. Zubaydah, the Court determined that a court cannot declare that classified information apparently in the public domain is exempt from the State Secrets Privilege when the United States has not officially confirmed or denied such information.22 Second, in Federal Bureau of Investigation v. Fazaga, the Court decided that certain Foreign Intelligence Surveillance Act of 1978 (FISA) provisions, which specifically require courts to review the underlying classified FISA applications and information to determine the lawfulness of surveillance, do not displace the traditional Reynolds privilege that protects information that would harm national security if disclosed.23

1: See Brady v. Maryland, 373 U.S. 83 (1963), and Rule 16, Federal Rules of Criminal Procedure. For an early judicial dispute involving executive privilege concerns, see United States v. Burr, 25 F. Cas. 30 and 187 (C.C.D. Va. 1807), where Aaron Burr sought certain exculpatory material from President Thomas Jefferson.
2: See, e.g., Alderman v. United States, 394 U.S. 165 (1969).
3: 92 U.S. 105 (1876).
4: Id.
5: Totten v. U.S., 92 U.S. at 107.
6: Id. at 106.
7: 544 U.S. 1 (2005).
8: The Totten bar has been labeled a “rule of non-justiciability, akin to a political question.” Al-Haramain Islamic Found. Inc. v. Bush, 507 F.3d 1190, 1197 (9th Cir. 2007).
9: Id. at 8.
10: General Dynamics Corporation v. United States, 563 U.S. 478, 482 (2011).
11: Id. at 487.
12: Id. at 486.
13: Id. at 486 (quoting Totten v. United States, 92 U.S. 105, (1876)).
14: Id. at 491.
15: 345 U.S. 1 (1953).
16: Id. at 3.
17: Id.
18: 345 U.S. 1 (1953).
19: Id. at 8.
20: Id. at 7–8, 9–10, 11. Privilege is often claimed for information relating to government employee clearances, disciplines, or discharges. See, e.g., Webster v. Doe, 486 U.S. 592 (1988); Department of the Navy v. Egan, 484 U.S. 518 (1988). After the Court approved a government secrecy agreement for CIA employees, Snepp v. United States, 444 U.S. 507 (1980), the government expanded its secrecy program for classified and “classifiable” information. When Congress sought to curb this policy, a federal district judge declared the restrictions void as they encroached on the President’s executive powers. Nat’l Fed’n of Fed. Emps. v. United States, 688 F. Supp. 671 (D.D.C. 1988), vacated and remanded sub nom. Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153 (1989).
21: Reynolds, 345 U.S. at 11, n.26.
22: No. 20-827, slip op. (U.S. Mar. 3, 2022).
23: No. 20-828, slip op. (U.S. Mar. 4, 2022).