As long as the United States has had state secrets, the country has sought to keep them secure. George Washington even used methods to protect his secrets during the Revolutionary War. The goal of protecting secrets even extends to judicial proceedings. This effort dates back to 1876 when the Supreme Court in Totten v. United States found that “it may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential. . . .” 92 U.S. 105, 107 (1875).
Protecting government secrets in courts is accomplished in two ways: (1) through the Congressional enacted Classified Information Procedures Act (CIPA) for criminal cases; (2) through the common law State Secrets Privilege, recognized in United States v. Reynolds. 345 U.S. 1 (1953). The State Secrets Privilege allows the government to assert a claim in a case, even one it is not a party to, to prevent the use of any evidence that would disclose sensitive information and endanger national security.
Under CIPA, the Government is authorized to delete classified information from documents sought to be disclosed by either the prosecution or defense, and to “substitute a summary of the information for such classified documents, or substitute a statement admitting relevant facts that the classified information would tend to prove.” §4. CIPA also requires prompt notification by either party if they wish to use classified information: “The Court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” § 6 (c)(1). The procedure must occur before trial starts. However, where the Court denies the government’s motion or rules that the substitution is not suitable, the court (instead of dismissing the entire case) can dismiss specific counts, find against the Government on any issue related to the excluded classified information, strike testimony, or anything else it deems fit.
Whereas CIPA sets out specific procedures and remedies, the State Secrets Privilege is merely a common law evidentiary privilege. It can be asserted at any time in a case – even in pleadings. To assert the privilege, the Attorney General or Assistant Attorney General must assert the claim themselves, and provide with it an affidavit from the Secretary or Director of the entity whose information is at risk. The claim then goes before the court in camera, where the judge “must make an independent determination whether the information is privileged.” Al-Haramain Islamic Found., Inc. v. Bush (Al-Haramain II), 507 F.3d 1190, 1202 (9th Cir. 2007). If that information is deemed to be privileged, then that evidence is removed, and the judge must decide if the case can move forward without that information.
Unlike CIPA, State Secrets Privilege does not require that the classified or privilege information be replaced by the Government. The court merely decides whether the information should be excluded from the case in the interest of national security. There is no in between, like with CIPA. The information is either protected or not, and the case must proceed from there.
This, along with the increased assertion of the privilege beginning with the George W. Bush administration, has caused some to question whether the State Secrets Privilege offers too much power to the Executive Branch (See the Collaboration on Government Secrecy for a list of cases asserting the State Secrets Privilege).
Although courts decide if the State Secrets Privilege applies, a great deference is ultimately given to the Executive branch because the matter involves national security. Courts “surely cannot legitimately find [them]selves second guessing the Executive in this arena.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1081 (9th Cir. 2010) (en banc) cert. denied, 131 S. Ct. 2442 (U.S. May 16, 2011). This deference typically leads the court to accept the government’s assertion of the privilege, and the privilege ultimately leads the government to obtain outright dismissals of case, taking the case out of the litigants’ hands.
To some in Congress, the Executive is given too much power over the courts, and more procedures need to be offered to protect both the courts and the litigants. Recently, Congressman Jerrold Nadler reintroduced the bipartisan State Secrets Protection Act, H.R. 3332, which would establish CIPA-like procedures necessary in order for the government to assert the State Secrets Privilege. This bill would not only codify the courts’ independence in deciding if the privilege applies, but it also grants courts the power to require the government to issue substitutes for the privilege information in order to allow cases to move forward.
While this Act as been rejected in the past by Congress, the new controversies over secret government actions may be the spark Congress needs to pass the measure. However, only time will tell if Congress adopts these new procedures.