Academic journal article Presidential Studies Quarterly

The State Secrets Privilege: From Bush II to Obama

Academic journal article Presidential Studies Quarterly

The State Secrets Privilege: From Bush II to Obama

Article excerpt

Although the state secrets privilege dates back to a poorly reasoned Supreme Court decision in United States v. Reynolds (1953), proponents of the privilege claim it can be traced much further back to the Aaron Burr trial of 1807. As will be explained, that interpretation is entirely in error, so it is best to initially explain what the privilege is intended to cover and why the Burr trial supplies no support. This article will closely analyze Reynolds and its application during the Bush II and Obama administrations.

In most trials, litigants are expected to argue publicly and vigorously in their briefs and during oral argument. These unrestrained exchanges are needed to properly inform the court, give contending parties an opportunity to present their case, and check governmental abuse. Under the state secrets privilege, a court might accept the government's assertion that certain evidence may not be publicly revealed because it would risk national security. One option is for the court to ask the executive branch to share the sensitive document in camera, with the other side excluded. However, a court may also decide not to examine the document at all, preferring to defer entirely to executive claims. In subsequent years, as with the Reynolds case, it is possible for a court to discover that a contested document not only contains no sensitive information but reveals government negligence and abuse. There is substantial risk that the executive branch will deceive the courts.

The Aaron Burr Trial

In its brief submitted to the Supreme Court in 1952 in the Reynolds case, the Justice Department cited the Aaron Burr trial of 1807 as a precedent for the state secrets privilege (U.S. Department of Justice 1952, 10-11). The department produced a list of what it called successful assertions of the evidentiary privilege, offering this as the second example: "Confidential information and letters relating to Burr's conspiracy" (ibid., 24). That statement is false, but in 1977 a federal district court, apparently guided by the Justice Department, claimed that the state secrets privilege "can be traced as far back as Aaron Burr's trial in 1807." (1) In 1989, the D.C. Circuit acknowledged that the "exact origins" of the privilege "are not certain," but nevertheless placed its "initial roots" in Burr's trial and its "modern roots" in Reynolds. (2) According to a different federal district court in 2004, the origins of the privilege "can be traced back to the treason trial of Aaron Burr." (3)

The decision in 2004 correctly noted that during the trial Burr sought access to letters that General James Wilkinson--the primary government witness against him--had sent to President Thomas Jefferson. According to the Jefferson administration, the letters "purportedly contained information" about Burr "of whose guilt," Wilkinson said, "there can be no doubt." Initially, the government objected to producing those documents, asserting it was "improper to call upon the president to produce the letter of Gen. Wilkinson, because it was a private letter, and probably contained confidential communications, which the president ought not and could not be compelled to disclose. It might contain state secrets, which could not be divulged without endangering the national safety." The government further argued that "[i]f the letter contained state secrets which it would be inconsistent with the public safety to disclose, the president could say so in the return to the subpoena." (4)

According to the Jefferson administration, even before the trial began and evidence could be introduced and evaluated, there could be "no doubt" about Burr's guilt. The private letter "probably" contained confidential information. The letter "might" contain state secrets, and if by some chance it did have state secrets its disclosure would "endanger" the nation. Why would anyone give credence to such vague, speculative, and undocumented arguments? …

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