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The privilege to protect military and state secrets belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself 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.
A military aircraft on a flight to test secret electronic equipment crashed and certain civilian observers aboard were killed. Their widows sued the United States under the Tort Claims Act and moved under Rule 34 of the Federal Rules of Civil Procedure for production of the Air Force's accident investigation report and statements made by surviving crew members during the investigation. The Secretary of the Air Force filed a formal claim of privilege, stating that the matters were privileged against disclosure under Air Force regulations issued under R. S. § 161 and that the aircraft and its personnel were "engaged in a highly secret mission." The Judge Advocate General filed an affidavit stating that the material could not be furnished "without seriously hampering national security"; but he offered to produce the surviving crew members for examination by plaintiffs and to permit them to testify as to all matters except those of a "classified nature."
Was there a valid claim of privilege under Rule 34?
The court held that, in passing upon the government's claim of privilege against disclosure of military secrets, a court may not automatically insist upon an examination of the secret documents before accepting the claim, even though such disclosure be to the judge alone in chambers, and that it was error for the District Court, under the circumstances of the instant case, to insist upon examination of the documents. It was pointed out that there was reasonable danger that they would contain military secrets concerning electronic equipment, while, on the other hand, there was nothing to suggest that such equipment had anything to do with the accident, and the necessity for producing the documents was greatly minimized by the offer of the government to produce the surviving crew members and permit them to testify.