Origin and Operation of the State Secrets Privilege
As noted at the conclusion of part 1 of this article, the federal district judge in the Jewel case expressed frustration that his acceptance of the government’s invocation of the state secrets privilege, which produced a ruling against the Jewel plaintiffs’ assertion that Section 702 violates the Fourth Amendment, was decided “without full public disclosure of the Court’s analysis and reasoning.” Then, in August 2018, the federal district judge in the Wikimedia case denied discovery requests sought by Wikimedia concluding that the invocation of the state secrets privilege by the government in that case made it “clear that there is a reasonable, and indeed likely danger that disclosure of [the information sought by Wikimedia] will expose matters which should not be divulged in the interest of national security.” But, like the Jewel court, the Wikimedia judge expressed a disconcerting unease with the proper invocation of the state secrets privilege, questioning “whether this long-ago judicially created privilege has, or should have, any continuing vitality.”
To see federal judges who hold in their hands the security (and, correspondingly, the effectiveness) of one of the nation’s most secret, and most fragile, foreign intelligence surveillance programs expressing such skepticism about the utility and need of a doctrine that seems a logical imperative to protecting national security in a democratic society is puzzling and troubling. In this particular zone of colliding constitutional authorities fraught with potentially dangerous consequences, the general legal nostrum that privileges should be narrowly construed must be sufficiently flexible to recognize that this particular privilege serves vital national security concerns while also assuring that the constitutional separation of powers is properly preserved. As one court described its importance, “A ranking of the various privileges recognized in our courts would be a delicate undertaking at best, but it is quite clear that the privilege to protect state secrets must head the list.” To understand why this is so, a discussion of the origins, and operational mechanics, of the state secrets privilege is instructive.
The availability of judicial redress for claims of executive overreach is a well-established part of the American judicial system, and reflects at least one means by which the Constitutional separation of powers is preserved. Since Marbury v. Madison, it has been an accepted shibboleth of American jurisprudence that it is unquestionably the duty of the judiciary “to say what the law is;” but, a corollary of that principle is that each branch of the government must initially interpret the Constitution in the performance of its assigned constitutional duties, and the interpretation of its powers by any co-equal branch must be accorded great respect. In particular, the Supreme Court has observed that “utmost deference” should be accorded a president’s exercise of his Article II duties in the areas of “military or diplomatic secrets” because:
The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.
Where litigation embraces matters of national security, the state secrets privilege, properly invoked by the executive branch has historically permitted the government to bar, as the Supreme Court first described in a decision rendered in 1953, the disclosure of information if “there is a reasonable danger” that disclosure will “expose military matters which, in the interest of national security, should not be divulged.” The privilege can serve as a bar to the use of particular information as evidence or, in its broadest application, as essentially a rule of non-justiciability where the state secret requires dismissal of the lawsuit.
That broader application of the state secrets privilege dates back to 1875, where a claimant brought suit seeking compensation for clandestine services allegedly provided pursuant to a secret contract made with President Lincoln during the Civil War. In Totten v. U.S., 92 U.S. 105 (1875), the Supreme Court ruled that an action cannot be maintained in the courts where the matters exposed could be of “serious detriment to the public.” Citing Totten, the Supreme Court more recently reaffirmed the principle that “public policy forb[ids]” suits “based on covert espionage agreements” in recognizing that such suits “threaten to undermine ongoing intelligence-gathering and covert operations – two vital aspects of national security.”
In theory, the privilege ostensibly serves the purpose of affording protection to the nation’s most sensitive secrets during legal proceedings—a function not only practical but, in a constitutional sense, arguably essential to honor the separation of powers because its availability permits the executive branch to protect information where secrecy is necessary to its military and foreign affairs responsibilities. The Supreme Court itself, in its Reynolds decision, 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. Later, as noted, in U.S. v. Nixon, the Supreme Court further articulated the doctrine’s constitutional dimension, observing that the state secrets privilege provides exceptionally strong protection because it concerns “areas of Article II duties [in which] the courts have traditionally shown the utmost deference to Presidential responsibilities.” It has been said of the privilege that 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.”
As a matter of procedure, the invocation and consideration of the state secrets privilege generally unfolds as follows: first, the court ascertains that the procedural requirements for invoking the state secrets privilege have been satisfied; second, the court decides whether the information sought to be protected qualifies as privileged under the state secrets doctrine; and, third if the information is determined to be privileged, the court must decide how the matter should proceed in light of the successful privilege claim. The first step requires that (i) the privilege be asserted by the government, it cannot be claimed or waived by a private party; and (ii) the privilege must be asserted by the head of the department which has control over the matter and who must give personal consideration to the privileged material. Courts assessing a claim of state secrets privilege must simultaneously accord “utmost deference” to the Executive Branch’s assessment of the risk to national security posed by the disclosure of the information at issue while simultaneously “critically examin[ing] instances of [the privilege’s] invocation” so as “not to accept at face value the government’s claim or justification of privilege.”
The Supreme Court has balanced these competing concerns by requiring courts to determine from the totality of the circumstances of the case whether there is a “reasonable danger” that compulsion of the evidence will expose “matters which, in the interest of national security, should not be divulged.” The government bears the burden of convincing the reviewing court that the Reynolds “reasonable danger” standard is met. To the consternation of critics of the privilege, many courts follow the view that the explanation of the department head who formally invokes the privilege is “frequently … sufficient to carry the Executive’s burden.” In the end, if the government carries its burden and shows that there is a reasonable danger that disclosure of the information will expose matters that should not be divulged, “court[s] [are] obliged to honor the Executive’s assertion of the privilege[.]” Significantly, once accepted by a court, the proper application of the state secret privilege resolves the issues as to which privilege is asserted without the court actually reviewing the matters alleged to be a state secret or, as expressed by the U.S. Supreme Court, when the privilege is properly invoked, “the claim of privilege will be accepted without further disclosure.”
Invoking the State Secrets Privilege to Protect the Section 702 Program in the Courts
Aside from the state secrets privilege which has its antecedents in English common law, Congress has enacted both a number of statutory privileges that also touch on matters of national security, as well as procedural rules governing the handling of sensitive national security information. FISA, itself, contains a specific statutory provision addressing the disclosure of information “obtained or derived from [a FISA] surveillance” and, unlike the state secrets privilege, these procedures specifically call for an in camera, ex parte review of responsive information by the court.
Uniform application of these various privileges by the federal judiciary in litigation involving Section 702, however, has proven elusive. In the Jewel case, for example, the district court in the Northern District of California ruled (in 2013) that the in camera, ex parte process provided in FISA §1806(f) preempts the state secrets privilege, at least with respect to certain claims pursued by the Jewel plaintiffs alleging violations of statutes like the Wiretap Act, the Stored Communications Act, or FISA. Thus, the Jewel court apparently intends to employ the procedures found in FISA §1806(f) with respect to the handling of classified information relevant to plaintiffs’ statutory claims. As noted earlier, however, two years later (in 2015), in dismissing plaintiffs’ Fourth Amendment (i.e., constitutional) claims, the Jewel court specifically referred to the “Government’s assertion of the state secrets privilege” in concluding that plaintiffs’ Fourth Amendment claims could not be fully adjudicated “without risking exceptionally grave damage to national security.” Apparently, at least to the Jewel court, the state secrets privilege has been preempted by FISA’s disclosure provisions with respect to certain claims of unlawful electronic surveillance asserted as statutory violations, but remains available to the government when the claims at issue are of constitutional dimension. By implication, then, the state secrets privilege is also available for consideration of any First Amendment claim, but the Jewel court has issued no ruling specifically saying so.
Then, just last August , with the Wikimedia case back in its hands, the federal district court in Maryland was called upon to decide whether it should order certain materials regarding the Upstream program produced to Wikimedia in discovery. The government asserted the state secrets privilege; Wikimedia argued, among other things, that FISA § 1806(f) preempted the application of that privilege. In Wikimedia, the district court rejected the preemption argument and, finding the privilege properly invoked, denied the motion to compel additional disclosures regarding the Upstream program. Curiously, however, in dicta that was unnecessary to the resolution of the issue before it, the district court wondered: “Neither addressed nor resolved here is whether this long-ago judicially created privilege has, or should have, any continuing vitality today. This is a question not within the province of a district court.”
So, at least for now, the particulars of the Upstream collection program remain secret; but the previously noted “frustration” with the absence of full public disclosure (expressed by the Jewel court) and gratuitous observations about the continued “vitality” of the state secrets privilege (Wikimedia court) hardly inspire confidence in the judiciary’s appreciation of the need to protect the secrecy required for the nation’s most vital intelligence programs to operate in the secrecy essential to be effective. For it is a truism, and a dangerous one where national security is involved, that, “[a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.”
Will the State Secrets Privilege Continue to Protect the State’s Secrets?
Critics of the state secrets privilege have long complained that its use readily affords cover for executive overreach and improprieties and, truth be told, the executive branch’s handling and use of the privilege has been less than adroit. Although it is difficult to track its use with precision since not all decisions may be reported and court dockets often mask its use under more banal descriptions like ‘classified submission,’ available measures that have been undertaken indicate that the government’s employment of the privilege has grown steadily. Between the Reynolds decision in 1953 and 1972, the privilege was invoked a reported six times. Following the disclosure of multiple abuses by the intelligence agencies revealed during the 1970s, the executive branch invoked the privilege at least 65 times between 1973 and 2001. Then, after the September 11 terrorist attacks and the subsequent introduction of a panoply of anti-terrorism initiatives (NSA warrantless surveillance, and CIA rendition and enhanced interrogation), the government has asserted the privilege on as many as a dozen more occasions in the spate of lawsuits spawned by those programs.
In 2008, prompted at least in part by the continued skirmishing in the courts surrounding lawsuits involving those Bush administration programs, legislation was introduced in Congress seeking to codify the parameters of the state secrets privilege. Separate bills were introduced in both the House and the Senate with the Senate bill, advanced jointly by Senators Arlen Spector and Edward Kennedy, receiving the greatest attention. Both bills would have strengthened the judicial scrutiny of executive assertions of the privilege. The Senate bill, for example, would have required (1) a supporting affidavit from the head of the executive branch asserting the privilege providing a factual basis for the invocation of the privilege—accompanied by an unclassified version of that affidavit for public release; (2) a showing of “significant” (as opposed to “reasonable”) danger to national security for the privilege to apply while specifically rejecting the view that “utmost deference” be accorded the position of the executive; and (3) a requirement that (unlike Reynolds) the judge actually review the information the privilege is invoked to protect.
In a letter to then-Senate Judiciary Committee chairman, Senator Patrick Leahy, Attorney General Michael B. Mukasey expressed strong Bush administration opposition to the legislation, saying that the bill “would needlessly and improperly interfere with the appropriate constitutional role of both the Judicial and Executive branches in state secrets cases; would alter decades of settled case law; and would likely result in the harmful disclosure of national security information that would not be disclosed under current doctrine.” Ultimately, both bills and others introduced in subsequent congressional sessions foundered in the Congress although a number of the features included in those legislative attempts were implemented as executive policy by the Obama administration.
For now, however, pending some new form of legislative action, the possibility of serious disruption to the Section 702 Upstream program—the particulars of which, if disclosed, will, according to the Director of National Intelligence, cause “exceptionally grave damage and, at the very least, serious damage to the national security”—remains arguably one decision away from judicially ordered disruption. The persistence of the litigation surrounding Section 702 and the repeated failure of Section 702’s opponents to convince Congress to modify the authority in the ways they want makes it likely that those opponents will keep coming to courthouses to find a federal judge—it only takes one—who may conclude that just enough information about Upstream surveillance has leaked or seeped into the public domain to conclude that no “reasonable danger” exists to national security if this one document, or this particular schematic, describing certain aspects of the program is disclosed. It is troubling, to say the least, that the American legal process entertains the possibility of such an outcome regarding a national security program that is both enormously valuable and uniquely fragile in terms of the vulnerability of the intelligence product it produces.
This is not a call for judicial abdication to the executive simply because litigation touches on matters of national security. The litany of intelligence abuses revealed in the past half century, especially when coupled with the admittedly aggressive anti-terrorism programs implemented after the September 11 attacks, is enough to counsel against such abdication. But the judicial branch needs to remain mindful that, while complete abandonment of judicial control might lead to unacceptable abuse of the privilege, “too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect.” Such is the delicacy of the balance to be struck whenever there is a grating at the edges of the tectonics created by the separation of powers.
To help insure that the nation’s truly critical secrets are afforded the greatest possible protection, it seems prudent, if only from a national security perspective regardless of other issues in any particular lawsuit, to insure, in any case where the government asserts the state secrets privilege and the district court rejects its application, that the government be permitted to seek immediate appellate review of that decision notwithstanding any prohibition generally applicable to interlocutory appeals.
Another change worthy of consideration where the underlying secret relates to electronic surveillance conducted pursuant to FISA, is to have the issues presented by the invocation of the privilege referred to the Foreign Intelligence Surveillance Court for resolution in the first instance since that court possesses an institutional competence in this area that it can bring to bear in consideration of the issue. While this suggestion will not be welcomed by the FISC’s many critics already dissatisfied by FISA’s absence of an adversarial process in FISC proceedings, the reality is that the current procedures by which a governmental invocation of the state secrets privilege is resolved in the federal district courts is equally non-adversarial. Committing the state secrets decision to the FISC when the claim relates to electronic surveillance not only capitalizes on that court’s institutional competence, but the security procedures already in place at the FISC could arguably facilitate a more expansive scope of judicial review by having the actual materials subject to the claim reviewed by the FISC using the ex parte, in camera procedures found in FISA’s § 1806(f).
Such an approach seems a prudent alternative to having a federal district judge, with no experience or background in FISA or electronic surveillance generally, make a decision that could jeopardize the security and effectiveness of a carefully constructed surveillance scheme implemented to accomplish goals directly related to vital national security and foreign affairs concerns that has received congressional review and approval, and executive concurrence, three times in the past 11 years.
U. S. v. Reynolds, 345 U.S. 1, 10 (1953). The Reynolds case arose out of rather tragic circumstances. A B-29 bomber crashed in 1948 during a mission testing classified radar equipment, and the widows of several of the deceased crew members sued the U.S. under the recently enacted Federal Tort Claims Act. The plaintiff widows sought a copy of the Air Force’s post-accident investigative report which the government refused to produce on the ground that it contained sensitive information relating to the classified equipment on the plane. In the lower courts, the government was ordered to produce the report but, in the Supreme Court, the government prevailed with the High Court managing to elaborate the doctrinal details of the state secrets privilege while simultaneously sowing sufficient uncertainty regarding its practical implementation that the latter vagaries still plague lower courts today.
In an ironic historical footnote to the case, it was later revealed that the Air Force investigative report that precipitated this seminal decision on the state secrets privilege did not actually contain any information about the secret equipment the plane was carrying.
General Dynamics Corp. v. U.S., 563 U.S. 478, 486 (2011).
Abilt v. CIA, 848 F.3d 305, 312 (4th Cir. 2017). But, these views affording a constitutional dimension to the privilege predicated on the president’s Article II powers are not universally accepted. In reporting on the proposed “State Secrets Protection Act” in 2008, the Senate Judiciary Committee’s Report observed: “Regardless of whether the privilege has any constitutional dimension, however, there is widespread agreement that Congress has constitutional authority to regulate the privilege, based on its Article III powers to set rules of procedure and evidence for the Federal courts, its Article I powers related to national security and foreign affairs, and the Necessary and Proper Clause. Article II is not the only relevant part of the Constitution. Even if the state secrets privilege were in some respect ‘‘rooted’’ in our constitutional structure, there is no bar to Congress, using its own authorities rooted in the Constitution, exercising concurrent authority over the protection of state secrets or providing rules for implementation of the privilege.” S. Rep. 110-442 at 11-13 (2008).
Wikimedia Foundation v. NSA, 335 F.Supp.3d 772, 787 (D. Md. 2018).
El-Masri v. U.S., 479 F.3d 296, 305 (4th Cir. 2007).
E.g., 18 U.S.C. § 798 (prohibiting the disclosure of classified information concerning U.S. communications intelligence activities); 50 U.S.C. § 3024(i)(1) (mandating that the Director of National Intelligence protect intelligence sources and methods against unauthorized disclosure); and 50 U.S.C. § 3605 ( prohibiting the disclosure of any information regarding the organization, function, activities or personnel of NSA).
E.g., 50 U.S.C. § 1806(f) (regulating disclosures of information and other matters relating to FISA surveillances); 18 U.S.C. app. III §§ 1-16 (Classified Information Procedures Act).
 In concluding that the FISA § 1806(f) review process displaced the state secrets privilege, at least with respect to statutorily-based claims of unlawful electronic surveillance, the Jewel court professed to be following the lead of In re NSA Telecommunications Records Litigation, 564 F.Supp.2d 1109 (N.D. Cal. 2008), which had reached a similar conclusion.
 On its website page providing “Background on the State Secrets Privilge,” the ACLU argues: “Unless the courts reject the government’s overbroad claims of privilege, the government will have every incentive to continue invoking ‘state secrets’ as a shield against embarrassing disclosures.” https://www.aclu.org/other/background-state-secrets-privilege. In its report on the 2008 version of the “State Secrets Protection Act,” the Senate Judiciary Committee noted that the privilege “has long been the subject of academic criticism.” S. Rep. 110-442 at 3-4 (2008).
 Chesney, Robert M., National Security, Litigation & the State Secrets Privilege, Legal Issues in the Struggle Against Terror, Carolina Academic Press (2010).
See, State Secrets Protection Act, S. 2533, 110th Cong. (2007-2008).
 Mukasey, Michael, Letter to Senator Patrick Leahy, March 31, 2008. Echoing the arguments of the Bush administration at the time, The Heritage Foundation, as one example, opined that the proposed legislation was “unnecessary, unconstitutional, and undemocratic.” Grossman, Andrew, The State Secret Protection Act: Unnecessary, Unconstitutional, and Undemocratic, The Heritage Foundation, June 4, 2009.
See, e.g., Memorandum from the Office of the Attorney General Re: Policies and Procedures Governing the Invocation of the State Secrets Privilege, Sept. 23, 2009 (requiring, inter alia, a showing of “significant” harm to the national security, “narrow tailoring” of the privilege, and personal approval of each invocation by the Attorney General).