By: Thomas R. Spencer & F.W.Rustmann,
can function without secrets. Indeed, it is a fundamental characteristic of
sovereignty that information vital to the conduct of a nation's business be
kept confidential. The history of civilization is peppered with tales of
secrets codes, covert correspondence and closely held military inventions used
to vanquish enemies.
The control of these secrets is universally the prerogative of the sovereign leader.
today, the State Secrets
Privilege is the almost unassailable Privilege of the Executive Branch to
refuse to disclose secret information to anyone. Moreover, a lawsuit against
the government which is based on State Secrets is almost always dismissed by the
courts. The Privilege is intertwined with the political history of our country
and the contest over the balance of power and liberty.
Colonists were steeped in the history of civilization and schooled in the
prerogatives of the English Crown--- the imposing exercise of which spawned the
economic and political disputes leading to the American Revolution. Crown Privilege, which included the "state
secrets privilege", was a self-proclaimed and indisputable power of the Crown beyond
the reach of the law. The Crown refused to permit its Courts or the Parliament
to bridle its unilateral right to withhold information from its subjects. The
justification for this royal privilege was the centuries-old belief, binding
the social fabric, that the Crown always operated in the interests of its
subjects and that State Secrets served the proper administration of the Crown's
responsibilities to the people. Since the Crown was the sole determiner of what
was in the public interest, neither a Court nor a Parliament could overturn or
debate that determination. 
discussions and arguments over the construction of America's new form of
government -- unknown and untested in history, the drafters were wary of the
concentration of power. Checks and balances on each Branch of government were
demanded as a reaction to the autocratic sovereignty just thrown off in war.
Yet the framers knew that secrecy was fundamental to government. They assumed
that the Executive Branch, as the administrative Branch, would house the new
nation's secrets privilege and saw no need to specify its existence, its
exercise or fashion its limits. After
all, in their view, the Legislative Branch, itself divided into two parts, was
the premiere, most powerful Branch---it resided in Article I of the
Constitution. The Executive Branch was deemed secondary (hence Article II) and
the Judicial Branch the weakest (Article III).
political arguments over the power of the new government festered in the
elections following the adoption of the new Constitution in 1787. Partisan
feuds smoldered in a second political revolution, bursting into the election of
1800--- Thomas Jefferson versus then President John Adams. Jefferson
barely won the nasty election and John Adams paid him back by packing the
courts and commissions, prior to the end of his term. This led to the 1803 case
of Marbury v. Madison,
[enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law] in which
Justice John Marshall declared that the Constitution, despite the absence of specific language, implied that the Courts had
the final power to review actions of the Executive Branch for legality. It was
a bold and gigantic grasp of raw political power. But so delicate and
incendiary was the political balance at the time, that neither Jefferson nor
Congress challenged Marshall's opinion.
In a second
Constitutional crisis, President Jefferson in 1807 charged Aaron Burr with Treason
concerning Burr's activities in the Louisiana Territory, a territory Burr
allegedly tried to grab for himself. The Judge who assigned himself to the Treason
case was Jefferson's cousin and political enemy, Justice Marshall. Burr
requested to subpoena secret documents from President Jefferson. Marshall issued the subpoena. President
Jefferson, still burning from the Marbury
decision, refused to comply with the subpoena as a matter of principle,
raising, in effect, the State Secrets Privilege,
which he said was implied as a necessary component of the Executive Branch
functions. Justice Marshall was wary of pushing the issue. Moreover, Jefferson
avoided the crisis by producing some of the requested documents voluntarily
"for the justice of the situation." Marshall exonerated Burr thereby avoiding
the collision with Jefferson and the State Secrets Privilege.
years after the Trial of Aaron Burr,
President Lincoln personally retained the services of a spy during the Civil
War. He promised the spy compensation for information on certain Confederate
military operations. After Lincoln was assassinated and the spied had died, his
family made claim for compensation. The government denied the claim. The family
sued and the case, Totten v. United
States, [enhanced version / unenhanced version ] made
its way to the Supreme Court in 1875.
The Court turned down the claim, deciding that any claim in court which relies
on the disclosure of State Secrets, may not be maintained and must be
dismissed. This precedent is still the law today.
In 1953, the
State Secrets Privilege faced its third challenge. An Air Force B-29 aircraft
crashed in Georgia killing the entire crew. The families of the crew sued the
government, claiming negligence in the maintenance of the aircraft. The Air
Force refused to produce any of its records or recovered materials, even after
a Court Order required it, claiming that the Executive Branch could refuse even
the courts based on the State Secrets Privilege. The Supreme Court sustained
the government and its privilege in Reynolds
v. United States,
[enhanced version / unenhanced version ] holding that the privilege must be raised in
court and that a judge has the right only to determine whether the privilege has
been properly raised. The Court ruled that courts should not force disclosure
to review the propriety of the Privilege; else the purpose of secrecy would be
lost. This decision has never been modified or vitiated by the Court.
President categorizes secret information, classifying it into a hierarchy of
the damage to the nation if disclosed. "Confidential information" is the lowest
category of State Secrets and "Top Secret" is the highest. In reality, there
are many levels within the "Top Secret" category; but those levels and who has
access are frequently State Secrets themselves!
Secrets Privilege frequently collides with other concepts which are equally
important to American values. Personal liberties and Freedom of the Press are
just two collision points frequently debated and sometimes litigated. Citizens,
Media, politicians and courts have been historically concerned over the
validity of the use of the Privilege.
After all, the Privilege could easily be used to cover up crimes, unethical or
increasingly filed against the President seeking disclosure of secret
information. Congress has attempted many
times, especially lately, to impose by legislation limitations and procedures
on the President in his use of the Privilege. Thus far, all legislative
attempts have failed.
However, the Department of Justice has
recently announced a new policy of only withholding secret information in cases
if the disclosure would "significantly harm" national security. Now, only the
Attorney General personally will make the final decision on the use of the
Privilege in courts. Recent court decisions demonstrate that the sanctity of
the Privilege, first used by Thomas Jefferson in 1807, is very much intact today. The courts are extremely reluctant to force
disclosure when the President has decided that the nation's security could be
Spencer is a Miami lawyer. He concentrates in international business,
commercial litigation, governmental litigation and international arbitration. Spencer
regularly represents Intelligence Officers of the Clandestine Service.
Jr. is a 24 year veteran of the
Central Intelligence Agency' s
Clandestine Service, retiring as a member of the elite Senior Intelligence
Service. He is the founder and Chairman of CTC International Group, Inc. of
West Palm Beach, Florida. CTC is a leading provider of business intelligence,
legal support and analysis . Among other assignments, Rustmann was an
instructor at the CIA's covert training facility known as "The Farm." He is the
author of CIA, Inc.:Espionage and the Craft of Business Intelligence ( Brassey's
Visit Thomas R. Spencer, P.A. for
more analysis of international and foreign law issues.
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Simon Singh " The Code Book-The Secret History of Codes and Code Breaking" (
Anchor Books 2000).
"Secrets" can be facts, inventions,
policies, correspondence, procedures, views-anything the government may decide
should be secret. At the end of Fiscal Year 2008, there were 4,109 offices of
original classification in the federal government. See www.fas.org "Secrecy News."
 See Weaver and Escontrias, "Origins of the
State Secrets Privilege" at the Social Science Research Network, SSRN: http://ssrn.com/abstract=1079364(February
Gabriel Schoenfeld, " Necessary Secrets" ( Norton 2010) at Chapter 2 " Secrets
of the Founders."
Jefferson was intrigued with intrigue and secrecy. In fact, he invented and
frequently used a Secret Code machine, the Wheel Cipher, still admired today. David Kahn, " The Story
of Secret Writing." ( Scribner, 1966).
 5 U.S. (1 Cranch) 137 ( 1803). See Sloan and
McKean, " The Great Decision: Jefferson, Adams and Marshall, the Battle for the
Supreme Court ( Public Affairs, 2009).
Hoffer, " The Treason Trials of Aaron Burr ( University Press of Kansas 2008).
See United States v. Burr, 25 Fed Cas.30( D.C.D.Va.1807).
 Totten v.
United States, 92 U.S. 105 (1875).
Tenet v. Doe, 544 U.S. 1 ( 2005). [enhanced version / unenhanced version ]
 345 U.S.
1 (1953). Recently, all of the
classified information and the facts were inadvertently spilled out on the
internet. The facts showed absolute negligence in maintenance of the aircraft.
But in Herring v. United States, 424 F.3d 384 (3rd Cir.
2005), the Circuit Court held that the government was right in withholding the
evidence, due the fact that secret equipment was onboard.
 See the
Pentagon Papers Case, New York Times Co. v. United States, 403 U.S. 713 (1971).
[enhanced version / unenhanced version ]
 The 111th
Congress attempted to pass the State Secrets Protection Act, S. Bill 417; H.R.
984, without success.
 See Mohammed v. Jeppesen DataPlan, The en banc opinion of the 9th
Circuit Court of Appeal is reported at 614 F.3d 1070 (9thCir. 2010). [enhanced version / unenhanced version ]. Appeal to
the Supreme Court was denied on May 15, 2011.