Senators Ted Kennedy and Arlen Spector are drafting legislation to finally address the widespread abuse of the military and state secrets privilege, a law that would require courts to seriously review the basis and scope of these assertions. As lead counsel in the Area 51 cases involving the privilege, it is welcomed and long over-due news. The privilege has been claimed in various forms for decades by presidents. However, the Supreme Court articulated the current doctrine after a 1948 Air Force plane crash. The 1953 Supreme Court decision in Reynolds v. US was, and remains, highly controversial. What makes if even more controversial is that facts surfaced recently that show that the Air Force lied to the Supreme Court, a fact that academics have long asserted. The Supreme Court was asked to take up the case again in light of the new information, but refused.
This evidentiary rule created by the Supreme Court allows the government to deny discovery of secrets. In United States v. Reynolds (1953), the Supreme Court stated:
[T]he principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by the officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.
The problem is that the Supreme Court had assumed that courts would perform their critical role in guaranteeing that the privilege would be asserted as a last resort, limiting the scope and use of the privilege.
Sen. Arlen Specter has stated: “I don’t think that the simple assertion of state secrets ought to be the end of the matter.” Amen.
I was counsel in the Kasza and Frost cases out of the Ninth Circuit, which remain leading opinions in the area. While we won this Area 51 litigation and were awarded fees and costs as prevailing parties, we lost the privilege claims on evidentiary matters. The government in the case claimed that even information published on the cover of the New York Times could be claimed as classified. It was truly other worldly. The government was clearly using the privilege to shield evidence of criminal acts by federal officials.
This legislation could not be more important for civil liberties. Let’s just hope that it sees the light of day.
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