State Secrets

By Brian Beutler

Eric Holder wants to end abuse of the state secret privilege:

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

That’s great news insofar as you trust Eric Holder. But though he’ll surely be an improvement over Bush Attorneys General, there’s no reason to assume his judgment on this score won’t, over time, become politicized. What would really win me over is if Holder promised to support legislation that would ultimately result in some sort of consistent review process for all invocations of the state secrets privilege. Most of you probably know this already, but the history of the state secret privilege is a fairly ugly one.

Back in the early 1950s, three Air Force contractors were killed in a bomber crash, and their widows sued the United States for compensation. When they tried to force the government to produce the incident report for the crash, though, the government refused, claiming the report contained state secrets and that releasing it would imperil the nation. Lower courts weren’t particularly moved and sided with the widows, but the Supreme Court disagreed, affirming the government’s right to withhold evidence in this manner and winning substantial deference for the privilege from the courts for decades.

The only problem is, the government lied. Contrary to its claims, the bomber wasn’t on a secret mission, and there were no top secret technologies aboard. Nothing in the incident report, which was declassified several years ago, legitimized the government’s decision to withhold it. What the report did contain, however, was evidence that the plane had been rather poorly maintained–a fact that might have been embarrassing for the Air Force, and vindicating for the dead mens’ wives, but that hardly amounted to a legitimate claim of state secret.

Precedent is precedent, though. The Supreme Court had little information to work with, but it came nonetheless, and probably incorrectly, to a far reaching decision that has influenced case law pretty widely ever since. In that way, state secrets has become one of the executive branch’s most powerful privileges

The best way to scale back that power, it seems, would be for Congress to pass a law requiring judges to review classified evidence behind closed doors whenever a state secrets claim is made in their court. Or, thinking out loud, to create a separate court (maybe modeled on the FISC?) which would independently review state secrets claims as they come, and determine their validity one by one. I don’t hold out much hope that this will happen, but if Eric Holder could get behind it, that would be change I can believe in.