Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

14 - The State Secrets Privilege: Emergency Presidential Power by Another Name?

242 14 the state se­ crets priv­ i­ lege emer­ gency pres­ i­ den­ tial power by an­ other name? While the ­ George W. Bush ­ administration’s use of the state se­ crets priv­ i­ lege, as dis­ cussed in this chap­ ter, and other se­ cre­ tive prac­ tices1­ earned Bush the title of “the Se­ crecy Pres­ i­ dent,”2 Ba­ rack Obama took of­ fice in 2009 prom­ is­ ing a new era of govern­ ment trans­ pa­ rency3 and sug­ gest­ ing he would rein in pres­ i­ den­ tial power. How­ ever, the new Obama ad­ min­ is­ tra­ tion also used se­ crecy as a way to im­ ple­ ment a broad vi­ sion of emer­ gency pres­ i­ den­ tial power—in some ways, a vi­ sion that went be­ yond what the Bush ad­ min­ is­ tra­ tion had de­ scribed.4 The Obama ad­ min­ is­ tra­ tion ­ relied on se­ crecy to seal off con­ tro­ ver­ sial de­ ci­ sions, in­ clud­ ing the de­ ci­ sion to order the kill­ ing of U.S. cit­ i­ zens with­ out trial or hear­ ing, from re­ view by other ­ branches of govern­ ment or the pub­ lic. An im­ por­ tant tool it has used to main­ tain this veil of se­ crecy is the state se­ crets priv­ i­ lege, “a com­ mon law ev­ i­ den­ tiary rule that al­ lows the govern­ ment to with­ hold in­ for­ ma­ tion from dis­ cov­ ery when dis­ clo­ sure would be in­ im­ i­ cal to na­ tional se­ cur­ ity.”5 The state se­ crets priv­ i­ lege was rec­ og­ nized by the Su­ preme Court in a 1953 case ­ called Re­ ynolds v. ­ United ­ States.6 In Re­ ynolds, a case that re­ ceived lit­ tle pub­ lic at­ ten­ tion at the time, the ex­ ec­ u­ tive ­ branch aimed to “es­ tab­ lish an ex­ clu­ sive pres­ i­ den­ tial power: a de­ ter­ mi­ na­ tion that would be final and con­ clu­ sive on the leg­ is­ la­ tive and ju­ di­ cial ­ branches.”7 What the ex­ ec­ u­ tive­ sought was the power to re­ fuse to dis­ close ma­ te­ rial that it ­ deemed pro­ tected by the state se­ crets priv­ i­ lege with­ out mak­ ing the dis­ puted ma­ te­ ri­ als avail­ able even for ju­ di­ cial re­ view. The Obama ad­ min­ is­ tra­ tion has in­ voked this priv­ i­ lege as a pow­ er­ ful tool de­ signed to seal off ex­ ec­ u­ tive ­ branch de­ ci­ sions 243 the state secrets privilege from re­ view and to block lit­ i­ ga­ tion aimed at ­ cutting ­ through ­ layers of se­ crecy to de­ ter­ mine ­ whether con­ tro­ ver­ sial de­ ci­ sions are con­ sti­ tu­ tion­ ally jus­ tified. It has ­ argued for a state se­ crets priv­ i­ lege that can be used to win dis­ mis­ sal of en­ tire cases, ­ rather than sim­ ply pro­ tect­ ing con­ fi­ den­ tial in­ for­ ma­ tion from dis­ clo­ sure dur­ ing a law­ suit. In order to fully under­ stand the Obama ­ administration’s use of the state se­ crets priv­ i­ lege, it’s im­ por­ tant to begin with a dis­ cus­ sion of the state se­ crets priv­ i­ lege it­ self: how the Su­ preme Court came to rec­ og­ nize this priv­ i­ lege and how it has been used—or, as crit­ ics would ­ charge, ­ abused. In 1948, a U.S. Air Force plane that was test­ ing se­ cret elec­ tronic equip­ ment ex­ ploded in mid­ air and ­ crashed in Geor­ gia, kill­ ing nine men who were ­ aboard, in­ clud­ ing four ci­ vil­ ians. The wid­ ows of three of the ci­ vil­ ians filed a law­ suit under the Fed­ eral Tort ­ Claims Act al­ leg­ ing that their­ husbands’ death had been ­ caused by the ­ government’s neg­ li­ gence. In re­ spond­ ing to the law­ suit, the U.S. govern­ ment de­ nied that the govern­ ment was “in [any] man­ ner re­ spon­ sible for the ac­ ci­ dent.” A fed­ eral dis­ trict court judge or­ dered the govern­ ment to pro­ duce the ac­ ci­ dent re­ ports and state­ ments given by sur­ vi...