Our very privileged executive: Why the judiciary can (and should) fix the state secrets privilege

Temple Law Review

Volumn 80, Issue 2, 2007, Pages 499-527

  Telman, D A Jeremy ^a  

^a VALPARAISO UNIVERSITY   (United States)

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EID: 44349138708     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (203)

1. 345 U.S. 1 (1953).
2. Reynolds, 345 U.S. at 6-8.
3. Id. at 10.
4. Id. at 10-11.
5. See, e.g., El-Masri v. United States, 479 F.3d 296, 310-11 (4th Cir. 2007), cert. denied, No. 06-1613, 2007 WL 1646914 (U.S. Oct. 9, 2007) (affirming prediscovery dismissal on state secrets grounds of suit brought by German national who alleged that U.S. agents and others had subjected him to torture, unlawful detention, and inhumane treatment); Sterling v. Tenet, 416 F.3d 338, 348-49 (4th Cir. 2005) (affirming prediscovery dismissal on state secrets grounds of suit against Central Intelligence Agency for race discrimination under Title VII); Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 917 (N.D. Ill. 2006) (dismissing before discovery challenge to National Security Agency's warrantless wiretapping program on state secrets grounds); Edmonds v. U.S. Dep't of Justice, 323 F. Supp. 2d 65, 81-82 (D.D.C. 2004) (dismissing before discovery wrongful termination suit against Federal Bureau of Investigation on state secrets grounds), aff'd without opinion, 161 F. App'x 6 (D.C. Cir. 2005).
6. See Reynolds, 345 U.S. at 8 (calling privilege against self-incrimination analogous to state secrets privilege).
7. See Henry Lanman, Secret Guarding, SLATE, May 22, 2006, http://www.slate.com/id/2142155/ (criticizing Bush administration for transforming Privilege into "doctrine of broad government immunity").
8. See, e.g., El-Masri, 479 F.3d at 300 (dismissing suit brought by German national against U.S. agents and third-party contractors allegedly complicit in his abduction and extraordinary rendition to Afghani prison); Terkel, 441 F. Supp. 2d at 901 (dismissing lawsuit alleging statutory and constitutional violations against telephone service provider in connection with National Security Agency surveillance programs).
9. Neil Kinkopf. The State Secrets Problem: Can Congress Fix It?, 80 TEMP. L. REV. 489, 498 (2007).
10. See infra notes 80-90 and accompanying text for a discussion of how assertion of the Privilege affects litigants.
11. Speaking of the Alien Tort Statute, 28 U.S.C.A. § 1350 (West 2006), the Second Circuit stated: "This old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, no one seems to know whence it came." IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (citation omitted); see also Lucien J. Dhooge, Lohengrin Revealed: The Implications of Sosa v. Alvarez-Machain for Human Rights Litigation Pursuant to the Alien Tort Claims Act, 28 LOY. L.A. INT'L & COMP. L. REV. 393, 393 n.1 (2006) (noting German legend in which Lohengrin miraculously appears to rescue maiden but mysteriously vanishes upon being asked from whence he came).
12. In his Keynote Address at the Symposium, Marty Lederman noted that even when there is a conflict between the executive and the Congress in matters of foreign affairs, the executive's power is at its "lowest ebb," but it is not completely eliminated. Martin S. Lederman, Visiting Professor of Law at Georgetown Univ., Keynote Address at the Temple Law Review Symposium: Executive Power: Exploring the Limits of Article II (Mar. 23, 2007).
13. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 636 (1952) (Jackson, J., concurring).
14. William G. Weaver & Robert M. Pallitto, State Secrets and Executive Power, 120 POL. SCI. Q. 85, 93 (2005).
15. Id. at 93-99.
16. Id. at 93.
17. 345 U.S. 1, 7-8 (1953); see also Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 GEO. WASH. L. REV. 1249, 1271-83 (2007) (reviewing "public interest" privileges in nineteenth and twentieth century Anglo-American common law prior to Reynolds). But see LOUIS FISHER, IN THE NAME OF NATIONAL SECURITY: UNCHECKED PRESIDENTIAL POWER AND THE REYNOLDS CASE 71 (2006) (arguing that British precedent is not controlling as "Congress and federal courts have much greater independence than their counterparts in England"); Weaver & Pallitto, supra note 14, at 99 (criticizing Reynolds's reliance on English cases as "improvident").
18. See FISHER, supra note 17, at xi (characterizing Reynolds case as having "formalized the state secrets privilege"); Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 FORDHAM L. REV. 1931, 1936 (2007) (noting that U.S. Supreme Court first recognized the Privilege in Reynolds).
19. Reynolds, 345 U.S. at 9-10 (noting that "[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers" but also cautioning that "the court should not jeopardize the security which the privilege is meant to protect").
20. Id. at 3.
21. FISHER, supra note 17, at 1-2 (stating that public relations officer at plane's air base told reporters that bomber that crashed had been on mission to test secret electronic equipment).
22. Reynolds, 345 U.S. at 3.
23. See id. at 7-8 (setting forth requirements for invocation of Privilege and finding procedural steps to be met). Louis Fisher sets out the full history of the Reynolds case, making clear that the Privilege was not properly invoked at the trial or appellate level. FISHER, supra note 17, at 29-91. Rather, at the district court level, the government withheld the Air Force's official accident investigation report based on the Housekeeping Statute, 5 U.S.C. § 22 (1789) (current version at 5 U.S.C. § 301 (2000)), and various hearsay objections. Id. at 36. Before the Third Circuit, the government relied on the Housekeeping Statute and on "executive immunity." Id. at 64-69.
24. Reynolds, 345 U.S. at 5.
25. Id. at 11.
26. Id. at 10.
27. See FISHER, supra note 17, at 112 (quoting Justice Vinson's admonition that judicial control over evidence "cannot be abdicated to the caprice of executive officers" but then pointing out that judge would never know if executive officer acted capriciously under procedure adopted in Reynolds (quoting Reynolds, 345 U.S. at 9-10)); Weaver & Pallitto, supra note 14, at 101 (contending that "practical effect" of Reynolds has been to foster very abdication of control over evidence against which Reynolds Court warned).
28. Reynolds, 345 U.S. at 10 (emphasis added).
29. Id.
30. Id.
31. See FISHER, supra note 17, at 166-67 (reporting that daughter of one of civilians killed in plane crash at issue in Reynolds ordered accident report from website in 2000 and "was disappointed that it made no mention of the secret project").
32. According to the plaintiffs, "[t]he declassified documents . . . identify the main cause of the accident as the Air Force's failure to comply with two technical orders that mandated changes to the exhaust manifold assemblies to eliminate a fire hazard." Id. at 178.
33. Chesney, supra note 17, at 1288 (proposing "clear and convincing" standard in place of Reynolds's "reasonable danger" test but otherwise endorsing Reynolds's approach and arguing that Court's failure to notice that investigation report contained no state secrets illustrates "folly" of reasonable danger standard).
34. Reynolds, 345 U.S. at 11.
35. 92 U.S. 105 (1875).
36. Totten, 92 U.S. at 107.
37. Reynolds, 345 U.S. at 11 & n.26 (citing Totten, 92 U.S. 105).
38. Weaver & Pallitto, supra note 14, at 101 (calculating that courts required in camera inspection in less than one-third of reported cases in which Privilege has been invoked).
39. Reynolds, 345 U.S. at 11.
40. See, e.g., Sterling v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005) (affirming district court finding that information sought formed "the very basis of the factual disputes in this case" and concluding that there was "no way for Sterling to prove employment discrimination without exposing at least some classified details of the covert employment that gives context to his claim"); Black v. United States, 62 F.3d 1115, 1119 (8th Cir. 1995) (finding information subject to Privilege to be "at the core of Black's claims" and concluding that litigation could not be tailored so as to proceed without information subject to Privilege); Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 918 (N.D. Ill. 2006) (concluding that Privilege precluded defendant from affirming or denying activities alleged in complaint).
41. Kinkopf, supra note 9, at 494-96.
42. 345 U.S. 1 (1953).
43. Reynolds, 345 U.S. at 6.
44. Id.
45. Chesney, supra note 17, at 1261; see also Memorandum of Points and Authorities in Support of the Motion by Intervenor United States to Dismiss or, in the Alternative, for Summary Judgment at 4, El-Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006) (No. 1:05-cv-01417-TSE-TRJ), available at http://www.aclu.org/pdfs/safefree/govt_mot_dismiss.pdf (calling Privilege "without peer among governmental privileges" and "a manifestation of the President's Article I [sic] powers").
46. See Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983) (noting that scope of Privilege had remained "somewhat in doubt" before World War II as government had rarely invoked it).
47. Chesney, supra note 17, at 1310 (describing Privilege as "having a potentially inalterable constitutional core surrounded by a revisable common-law shell"); id. at 1271 (noting that, beginning in 1970s, opinions discussing Privilege invoked theme of separation of powers, "suggesting a constitutional foundation to reinforce the common law origins of the doctrine"); Frost, supra note 18, at 1935 (calling Privilege common law evidentiary privilege deriving from President's national security authority and thus infused with "constitutional overtones" (quoting Reynolds, 345 U.S. at 6)).
48. Reynolds, 345 U.S. at 6 n.9.
49. 418 U.S. 683 (1974).
50. Nixon, 418 U.S. at 708; see also Halkin v. Helms (Halkin I), 598 F.2d 1, 14 n.9 (D.C. Cir. 1978) (Bazelon, J., dissenting from denial of rehearing en banc) (arguing that constitutional basis for Privilege is unclear and noting that Nixon Court "appears to have derived the privilege from the President's Article II duties as Commander in Chief and his responsibility for the conduct of foreign affairs").
51. Most recently, in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court stated: "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake." Hamdi, 542 U.S. at 536.
52. See Nixon, 418 U.S. at 706 (refusing to accept arguments that doctrine of separation of powers or need for confidentiality in executive communications justify broad doctrine of executive immunity from judicial oversight).
53. See THE FEDERALIST NO. 48, at 18 (James Madison) (E.H. Scott ed., 1898) (arguing that unless branches of federal government "be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained").
54. Nixon, 418 U.S. at 703 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)).
55. See Frost, supra note 18, at 1933 (arguing that, in seeking dismissal of state secrets cases, executive strips Congress "of its ability to collaborate with the judiciary to curb executive power"); id. at 1955 (criticizing executive arguments suggesting that state secrets decisions be left to "political branches" for overlooking role of Congress, "one of the political branches," in granting courts jurisdiction to determine legality of executive conduct).
56. See Webster v. Doe, 486 U.S. 592, 604 (1988) (remarking on district courts' ability to control discovery process to balance one party's need for access to proof in support of colorable claims against government's need to protect confidentiality); FISHER, supra note 17, at 258 (rejecting broad judicial deference to executive branch as undermining "the judiciary's duty to assure fairness in the courtroom and to decide what evidence may be introduced"); Weaver & Pallitto, supra note 14, at 90 (contending that Privilege prevents courts from exercising their constitutional duty to oversee executive).
57. See Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983) (noting that trial judges "should accord considerable deference to recommendations from the executive department"); Halkin v. Helms (Halkin I), 598 F.2d 1, 9 (D.C. Cir. 1978) (urging courts to accord "utmost deference" to executive assertions of Privilege (quoting Nixon, 418 U.S. at 710)).
58. In insightful comments at the Symposium, Marty Lederman said that he was not sure that Congress has constitutional authority to limit the scope of the Privilege. Nevertheless, he claimed that Congress had in fact done so without eliciting strong objections from the executive branch. Lederman, supra note 12.
59. Weaver & Pallitto, supra note 14, at 92; see also Claudio Ochoa, Federalism and Separation of Powers: The State Secrets Privilege: Necessary Evil? ENGAGE, Feb. 2007, at 66, 67 (observing that courts are reluctant to challenge executive assertions of Privilege out of deference to executive expertise in area of national security).
60. See Brief of Defendant-Appellee at 11, El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007) (No. 06-1667), 2006 WL 2726281 (describing decision to invoke Privilege as "policy judgment" and remarking that Privilege is based on prediction of effect of disclosure on foreign states or nonstate actors).
61. See Hamdi v. Rumsfeld, 542 U.S. 507, 583 (2004) (Thomas, J., dissenting) (contending that courts lack information and expertise to challenge presidential decisions relating to national security and foreign affairs); El-Masri v. Tenet, 437 F. Supp. 2d 530, 536 (E.D. Va. 2006) (admonishing courts to "bear in mind" executive branch's authority over military and diplomatic affairs and its expertise in predicting effect of disclosure on national security).
62. See, e.g., Spacil v. Crowe, 489 F.2d 614, 619 (5th Cir. 1974) (observing that executive "resources and expertise in foreign affairs far outstrip those of the judiciary"); United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir. 1972) (noting that Central Intelligence Agency is executive agency regularly engaged in conduct of foreign affairs and national defense and that its clarification processes are beyond judicial review).
63. United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 320 (1972); see also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 995 (N.D. Cal. 2006) (recognizing and respecting executive's duty "to protect the nation from threats" but refusing to abdicate court's duty to adjudicate disputes in face of blanket assertions of secrecy).
64. United States v. Nixon, 418 U.S. 683, 710 (1974).
65. United States v. Reynolds, 345 U.S. 1, 11 (1953).
66. See infra Part IV for a discussion of judicial alternatives for proceeding with cases despite successful claims of privilege.
67. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1811 (2000), 8 U.S.C. § 1101 (2000), 47 U.S.C. §§ 605-606 (2000), and in scattered sections of 18 U.S.C.), amended by Intelligence Authorization Act for Fiscal Year 2000, Pub. L. No. 106-120,113 Stat. 1606 (1999).
68. See 50 U.S.C. § 1803 (providing that Chief Justice of United States shall designate eleven federal judges "who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance" in accordance with Act).
69. Chesney, supra note 17, at 1313.
70. Id.
71. Electronic Privacy Information Center, Foreign Intelligence Surveillance Act Orders, 1979-2006, http://www.epic.org/privacy/wiretap/stats/fisa_stats.html (last visited Dec. 17, 2007). In its first twenty-five years of existence, the FISC approved over 20,000 applications. Id. After holding steady in the 475-635 range from 1982 to 1993, the number of such applications doubled between 1993 and 2000 and doubled again between 2000 and 2005. Id. In 2005, the FISC approved more surveillance warrants than were issued by all other federal and state courts combined.
72. Jameel Jaffer, Panel Report: Secret Evidence in the Investigative Stage: FISA, Administrative Subpoenas, and Privacy, 5 CARDOZO PUB. L., POL'Y & ETHICS J. 7, 7 (2006).
73. The Senate Judiciary Committee that drafted the FISA expressed the need to establish checks on executive authority even in the area of national security: [T]he Executive Branch of Government should have, under proper circumstances and with appropriate safeguards, authority to acquire important foreign intelligence information by means of electronic surveillance. The committee also believes that the past record and the state of the law in the area make it desirable that the Executive Branch not be the sole or final arbiter of when such proper circumstances exist. [FISA] is designed to permit the Government to gather necessary foreign intelligence information by means of electronic surveillance but under limitations and according to procedural guidelines which will better safeguard the rights of individuals. S. REP. NO. 95-604, pt. 1, at 9 (1978), as reprinted in 1978 U.S.C.C.A.N. 3904, 3910.
74. See 4 JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 2375, at 3341 (1905) (stating that requiring officials "to justify their acts is the chief safeguard against oppression and corruption"); Weaver & Pallitto, supra note 14, at 89-90 (observing that openness in government and checks and balances are hallmarks of liberal-democratic political tradition). In a letter criticizing a revised draft of proposed Federal Rule of Evidence 509 on the Privilege, the Department of Justice acknowledged "that a basic principle of our democratic form of government is that most information in control of the Executive Branch should be readily and fully available to the public generally and to individual litigants." Letter from Richard Kleindienst, Attorney Gen., to Judge Maris, Chairman of the Comm. on Practice and Procedure of the Judicial Conference (Aug. 9, 1971), 117 CONG. REC. 33,651 (1971), reprinted in 26 CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE § 5661, at 430 n.45 (1992).
75. See infra notes 95-103 and accompanying text for a discussion of a model adopted from Delaware corporations law as a solution.
76. United States v. Reynolds, 345 U.S 1, 7-8 (1953).
77. See El-Masri v. United States, 479 F.3d 296, 301 (4th Cir. 2007), cert. denied, No. 06-1613, 2007 WL 1646914 (U.S. Oct. 9, 2007) (describing two sworn declarations submitted by then-Director of CIA explaining United States' reasons for asserting Privilege).
78. The locus classicus for mosaic theory seems to be United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972), in which the Fourth Circuit stated: The significance of one item of information may frequently depend upon knowledge of many other items of information. What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context. The courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area. Marchetti, 466 F.2d at 1318. The D.C. Circuit expanded on the topic in Halkin I: It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate. Halkin v. Helms (Halkin I), 598 F.2d 1, 8 (D.C. Cir. 1978).
79. For example, in affirming the district court's dismissal of claims under the Federal Tort Claims Act and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Eighth Circuit combined an institutional competence theory with the mosaic theory and concluded that the court must accord executive agencies the "utmost deference" because courts are "uninitiated" when it comes to determining whether particular disclosures would compromise national security. Black v. United States, 62 F.3d 1115, 1119 & n.5 (8th Cir. 1995) (quoting Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (2d Cir. 1991)). The Fourth Circuit dismissed a case on state secrets grounds where it was concerned that the contours of state secrets would be revealed if the government were to allow an expert witness to answer some questions but object to others. Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1243 (4th Cir. 1985).
80. Weaver and Pallitto describe the mosaic theory as holding that "even unclassified, seemingly banal information may be protected by the privilege because the sum of a large number of unclassified disclosures may add up to an overall picture of classified operations and capabilities." Weaver & Pallitto, supra note 14, at 104.
81. Id. at 101-02.
82. See id. at 86 (concluding that only possible cost to government of excessive assertions of Privilege is "bad publicity").
83. Id. at 102.
84. Reynolds v. United States, 192 F.2d 987, 995 (3d Cir. 1951), rev'd, 345 U.S. 1 (1953).
85. See United States v. Reynolds, 345 U.S. 1, 11 (1953) (pronouncing that necessity cannot overcome Privilege when military secrets are at stake): In re Under Seal, 945 F.2d 1285, 1289 (4th Cir. 1991) (expressing "discomfort" in depriving litigant of judicial forum but "not so reluctantly" concluding that district court's grant of summary judgment was correct).
86. See El-Masri v. United States, 479 F.3d 296, 312 (4th Cir. 2007), cert. denied, No. 06-1613, 2007 WL 1646914 (U.S. Oct. 9, 2007) (noting that it must be frustrating to plaintiff that reasons for dismissal of his suit are classified).
87. 323 F. Supp. 2d 65 (D.D.C. 2004).
88. Edmonds, 323 F. Supp. 2d at 81-82.
89. Id. at 81.
90. 416 F.3d 338 (4th Cir. 2005).
91. Sterling, 416 F.3d at 348.
92. Id.
93. United States v. Reynolds, 345 U.S. 1, 11 (1953).
94. See KENNETH S. BROUN, 1 MCCORMICK ON EVIDENCE 513 (6th ed. 2006) (explaining that innocent suspect "may be unduly prejudiced by his own testimony for reasons unrelated to its accuracy").
95. When Justice Stewart asked if there was any "public interest . . . in preserving secrecy with respect to a criminal conspiracy" perpetrated by the government, President Nixon's counsel attempted to evade the question but eventually answered that the public interest is "to avail the President . . . of a free and untrammeled source of information and advice, without the thought or fear that it may be reviewed at some later time." Transcript of Oral Argument, United States v. Nixon, 418 U.S. 683 (1974) (No. 73-1766), reprinted in 9 SETON HALL CONST. L.J. 1, 51 (1998). Such a sweeping executive privilege to prevent exposure of criminal conduct would eliminate significant constitutional and statutory protections against the exercise of unlimited executive power.
96. See Grimes v. Donald, 673 A.2d 1207, 1215 (Del. 1996) (noting that Grimes made demand as required under Delaware law); Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984) (characterizing demand requirement as recognizing "fundamental precept" that directors, rather than shareholders, manage corporations).
97. See Grimes, 673 A.2d at 1217 (noting that aim of demand requirement is to deter baseless suits while permitting suit where shareholder can show reasonable doubt that either majority of board is independent or that underlying transaction is protected by business judgment rule).
98. See DEL. CODE ANN. tit. 8, § 141(c) (2001 & Supp. 2006) (permitting boards of directors to delegate authority to committee); Zapata Corp. v. Maldonado, 430 A.2d 779, 785 (Del. 1981) (noting that if corporate board were not empowered to recommend dismissal of suits regarded as detrimental to corporation, "a single stockholder . . . might control the destiny of the entire corporation").
99. Zapata Corp., 430 A.2d at 786.
100. See id. at 787 (discussing appropriate standard of review of SLC recommendation).
101. See id. (rejecting business judgment rule standard and noting that "directors are passing judgment on fellow directors in the same corporation" and therefore might have some empathy for defendants).
102. Independence in this context entails more than having no personal financial or familial interest in the outcome of the litigation. Rather, Delaware courts have required the members of SLCs to have no significant business or social ties to the defendants in the proposed suit. See Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart, 845 A.2d 1040, 1055 (Del. 2004) ("[T]he SLC has the burden of establishing its own independence by a yardstick that must be 'like Caesar's wife' - 'above reproach.'" (quoting Lewis v. Fuqua, 502 A.2d 962, 967 (Del. Ch. 1985))); In re Oracle Corp. Derivative Litig., 824 A.2d 917, 920-21 (Del. Ch. 2003) (finding that SLC consisting of members with ties to defendants through various Stanford University connections failed independence test); Parfi Holding AB v. Mirror Image Internet, Inc., 794 A.2d 1211, 1232 (Del. Ch. 2001) (characterizing court's inquiry into SLC's independence as coming down to whether director is "incapable of making a decision with only the best interests of the corporation in mind").
103. See Zapata Corp., 430 A.2d at 789 (concluding that court should apply its own business judgment to evaluate motion).
104. See id. at 788 (holding that court must first "inquire into the independence and good faith of the committee and the bases supporting its conclusions," and imposing on corporation burden of establishing independence, good faith, and reasonableness of investigation).
105. Kinkopf, supra note 9, at 497-98.
106. I wholly endorse the approach to the problem that Kinkopf lays out in id.
107. Preliminary Draft of Proposed FED. R. EVID. 509, 46 F.R.D. 161, 272-74 (1969).
108. 21 WRIGHT & GRAHAM, supra note 73, § 5006, at 180.
109. 345 U.S. 1 (1953).
110. See Advisory Committee's Note to Preliminary Draft of Proposed FED. R. EVID. 509, 46 F.R.D. 161, 274-76 (1969) (noting that rule embodies protection of military and state secrets established by law of evidence as noted in Reynolds).
111. See 26 WRIGHT & GRAHAM, supra note 73, § 5661, at 440-41 (detailing changes in draft rule incorporating suggestions from Department of Justice).
112. Id. § 5661, at 439.
113. Proposed FED. R. EVID. 509(a)(2), reprinted in 26 WRIGHT & GRAHAM, supra note 73, at 415-16.
114. Id.
115. See Editorial, Gonzales v. Gonzales, N.Y. TIMES, Apr. 20, 2007, at A22 (noting strong evidence that Karl Rove, President Bush's former top political advisor, and Harriet Miers, former White House counsel, were deeply involved in alleged purge of attorneys general).
116. Compare Suzanne Malveaux, Bush Ready to Fight Lawmakers on U.S. Attorney Firings Flap, CNN.COM, Mar. 21, 2007, http://www.cnn.com/2007/POLITICS/03/20/us.attorneys.firings/index.html (reporting on Bush White House's opposition, based on executive privilege, to having any of its officials appear before congressional committees), with Stanley I. Kutler, Editorial, The 'Executive Privilege' Dodge, BOSTON GLOBE, Mar. 29, 2007, at A11 (expressing skepticism regarding applicability of executive privilege doctrine to proposed testimony of Rove and Miers).
117. See Preliminary Draft of Proposed FED. R. EVID. 509(e), 46 F.R.D. 161, 273-74 (1969) ("If a claim of privilege for a secret of state is sustained . . . the judge shall make any further orders which the interests of justice require . . . .").
118. Id. at 274.
119. See 26 WRIGHT & GRAHAM, supra note 73, § 5661, at 444-67 (reviewing legislative history behind proposed Rule 509 with frequent references to progress of Watergate scandal).
120. See James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1 (detailing secret National Security Agency surveillance program and noting that some officials questioned whether program crossed constitutional limits on legal searches).
121. See In re NSA Telecomms. Records Litig., 483 F. Supp. 2d 934, 937 (N.D. Cal. 2007) (recounting allegations that Verizon Communications, Inc. disclosed telephone records to National Security Agency in violation of California residential customers' privacy rights); Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1218 (D. Or. 2006) (detailing allegations that National Security Agency engaged in electronic surveillance of communications between plaintiff's directors and third parties in violation of FISA); Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 901 (N.D. Ill. 2006) (recounting allegations that AT&T provided to National Security Agency records of telephone calls of its customers in violation of Electronic Communications Privacy Act, 18 U.S.C. § 2702(a)(3) (2000 & Supp. IV 2005)); ACLU v. NSA, 438 F. Supp. 2d 754, 758 (E.D. Mich. 2006) (summarizing plaintiffs' constitutional and statutory challenges to National Security Agency's terrorist surveillance program), vacated, 493 F.3d 644 (6th Cir. 2007); Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 978 (N.D. Cal. 2006) (recounting plaintiffs' allegations that AT&T collaborated with National Security Agency in illegal and massive warrantless surveillance program).
122. The revised definition of the liability defense states that: [N]o action shall lie or be maintained in any court, and no penalty, sanction, or other form of remedy or relief shall be imposed by any court or any other body, against any person for the alleged provision to an element of the intelligence community of any information (including records or other information pertaining to a customer), facilities, or any other form of assistance, during the period of time beginning on September 11, 2001, and ending on the date that is the effective date of this Act, in connection with any alleged classified communications intelligence activity that the Attorney General or a designee of the Attorney General certifies, in a manner consistent with the protection of State secrets, is, was, would be, or would have been intended to protect the United States from a terrorist attack. This section shall apply to all actions, claims, or proceedings pending on or after the effective date of this Act. H.R. 3321, 110th Cong. § 5(a) (2007).
123. See Louis Fisher, Congressional Abdication: War and Spending Powers, 43 ST. LOUIS U. L.J. 931, 946-1004 (1999) (highlighting evidence of congressional abdication of its war and spending powers).
124. See U.S. CONST. art. I, § 8, cls. 11-14 (empowering Congress to declare war, grant letters of marquee and reprisal, raise and support armies, provide and maintain navy, and make rules for government and regulation of armed forces); see also D.A. Jeremy Telman, The Foreign Affairs Power: Does the Constitution Matter? 80 TEMP. L. REV. 245, 252-59 (2007) (reviewing PETER IRONS, WAR POWERS: HOW THE IMPERIAL PRESIDENCY HIJACKED THE CONSTITUTION (2005);
125. JOHN YOO, THE POWER OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005)) (detailing textual and historical arguments for congressional war powers);
126. D.A. Jeremy Telman, A Truism that Isn't True? The Tenth Amendment and Executive War Powers, 51 CATH. U. L. REV. 135, 149 (2001) (arguing that Congress is constitutionally empowered to control undeclared and declared war).
127. See Louis Fisher, Unchecked Presidential Wars, 148 U. PA. L. REV. 1637, 1637 (2000) (decrying lack of effective check on presidential war powers due to combination of congressional acquiescence and judicial passivity).
128. See Risen & Lichtblau, supra note 118 (noting that congressional leaders from both parties and other members of congressional intelligence committees were briefed on NSA surveillance program but did not disclose briefings and declined to be interviewed when New York Times investigated matter). Apparently, Senator Jay Rockefeller was troubled by the briefing he received and sent a handwritten letter of protest to Vice President Dick Cheney. Pat M. Holt, Congress is Partly to Blame for Bush's Warrantless
129. "This is not to say there is no forum to air the weighty matters at issue, which remains a matter of considerable public interest and debate, but the resolution of these issues must be left to the political branches of government." Memorandum of Points and Authorities in Support of the United States' Assertion of the Military and State Secrets Privilege; Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment; and Defendants' Motion to Stay Consideration of Plaintiffs' Motion of Summary Judgment, at 49, ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006) (No. 2:06-cv-10204).
130. See Frost, supra note 18, at 1931-32 (acknowledging argument that invocation of Privilege to dismiss entire categories of cases involves "an unwarranted usurpation of judicial power").
131. See id. at 1932 (expressing concern that courts' acquiescence in executive arguments urging dismissal of entire categories of cases intrudes on Congress's jurisdiction-conferring authority).
132. Id. at 1934.
133. 345 U.S. 1 (1953).
134. Reynolds, 345 U.S. at 9-10.
135. El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007), cert. denied, No. 06-1613, 2007 WL 1646914 (U.S. Oct. 9, 2007).
136. After laying out its understanding of the law on the Privilege, the Fourth Circuit noted that the plaintiff whose case it was about to dismiss "essentially accepts the legal framework described." Id. at 308.
137. See Reynolds, 345 U.S. at 11 (upholding Privilege while noting that necessity for divulgence of sensitive material was minimized by respondents' failure to pursue alternative, namely interviewing surviving crew members); Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1244 (4th Cir. 1985) (noting dismissal is proper "[o]nly when no amount of effort and care . . . will safeguard privileged material[s]").
138. According to statistics compiled by Bobby Chesney, courts granted thirty-three of the forty-three motions to dismiss filed by the government in state secrets cases. Chesney, supra note 17, at 1307.
139. 690 F.2d 977 (D.C. Cir. 1982).
140. Halkin II, 690 F.2d at 991.
141. 258 F.2d 36 (2d Cir. 1958).
142. Halpern, 258 F.2d at 43 (holding that district court should hold in camera proceeding if it could do so "without running any serious risk of divulgence of military secrets").
143. The court was persuaded that trial in camera was feasible in Halpern because plaintiff and witnesses were all already familiar with the secret invention at the heart of the case. Id.
144. 558 F.2d 1130 (2d Cir. 1977).
145. Loral Corp., 558 F.2d at 1132.
146. Id. at 1132-33.
147. 439 F. Supp. 2d 974 (N.D. Cal. 2006).
148. Hepting, 439 F. Supp. 2d at 1010 (quoting FED. R. EVID. 706(a)).
149. See Al Odah v. United States, 346 F. Supp. 2d 1, 14 (D.D.C. 2004) (requiring that counsel have "security clearance at the level appropriate for the level of knowledge the Government believes is possessed by the detainee"); In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174, 178 (D.D.C. 2004) (requiring that petitioners' counsel receive "necessary security clearance" to gain access to classified information relevant to cases); cf. Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 275-76 (4th Cir. 1980) (en banc) (suggesting that parties might identify alternative counsel who could receive necessary security clearance should present counsel be unable to obtain such clearance).
150. See Al Odah, 346 F. Supp. 2d at 13-14 (permitting unmonitored meetings between petitioner and counsel but requiring petitioner's attorney to submit any information derived from such meetings to government classification review if counsel wished to disclose such information to anyone else); In re Guantanamo Detainee Cases, 344 F. Supp. 2d at 183-91 (setting forth procedures for counsel access to Guantanamo detainees, including requirements that such counsel have or obtain security clearance).
151. See In re Under Seal, 945 F.2d 1285, 1287 (4th Cir. 1991) (noting that trial court granted protective order filed by government that allowed depositions to be conducted in secure facilities and in presence of government security officers).
152. 872 F.2d 472 (D.C. Cir. 1989).
153. In re United States, 872 F.2d at 479 (finding itself, for myriad reasons, unable to determine based on its in camera review of government affidavit that disclosure of information relating to decades-old government activities would reveal state secrets).
154. Id. (citing Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983)).
155. A similar approach is that of the district court in Hepting, which refused to allow certain discovery, but invited plaintiffs to revisit the issue, as continuing disclosures regarding the challenged NSA surveillance program might make public the information with respect to which the government was asserting the Privilege. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 997-98 (N.D. Cal. 2006).
156. 371 F.Supp. 97 (D.D.C. 1974).
157. Black, 371 F. Supp. at 101-02.
158. 436 P.2d 12 (Nev. 1967).
159. Elson, 436 P.2d at 16 (quoting United States v. Reynolds, 345 U.S. 9-10 (1952)).
160. Id. at 16-17.
161. Id. at 16 (citation omitted).
162. Chesney, supra note 17, at 1252 (contending that "recent assertions of the privilege are not different in kind from the practice of other administrations" in terms of types of information protected, process judges apply, or remedies sought). Chesney also contends that there is no strong evidence suggesting that the Bush administration has asserted the Privilege more frequently than past administrations, id. at 1301, or that it has sought dismissal more often than other administrations, id. at 1306-07. Amanda Frost disagrees, noting that Chesney's statistics suggest that the Bush administration has been more aggressive in its use of the Privilege. See Frost, supra note 18, at 1939 ("The Bush Administration has raised the privilege in twenty-eight percent more cases per year than in the previous decade, and has sought dismissal in ninety-two percent more cases per year than in the previous decade.").
163. 92 U.S. 105 (1875).
164. Totten, 92 U.S. at 107.
165. Id. at 105-06.
166. Id. at 106.
167. Id. at 107.
168. 544 U.S. 1 (2005).
169. Tenet, 544 U.S. at 8 (noting that Totten forbids maintenance of any suit requiring disclosure of matters considered legally confidential).
170. See id. at 9 (noting that under Totten, case is "dismissed on the pleadings without ever reaching the question of evidence" (quoting United States v. Reynolds, 345 U.S. 1, 11 n.26 (1953)).
171. United States v. Reynolds, 345 U.S. 1, 6-7 (1952).
172. Id. (citing Totten, 92 U.S. at 107).
173. Id. at 11 & n.26 (citing Totten. 92 U.S. 105).
174. Id. at 3.
175. Id. at 11.
176. See, e.g., Tenenbaum v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004) (affirming prediscovery dismissal on state secrets grounds in religious discrimination case); Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc) (affirming prediscovery dismissal because disclosure of state secrets at trial would have been inevitable); Edmonds v. U.S. Dep't of Justice, 323 F. Supp. 2d 65, 81-82 (D.D.C. 2004) (ordering prediscovery dismissal of all of plaintiff's constitutional and statutory claims upon finding that litigation posed "reasonable danger to secrets of state" (quoting In re United States, 872 F.2d 472, 475 (D.C. Cir. 1989))).
177. See Frost, supra note 18, at 1950-51 (criticizing government for invoking Privilege in seeking dismissal of categories of cases that raise constitutional challenges to government action).
178. 323 F. Supp. 2d 65 (D.D.C. 2004).
179. Edmonds, 323 F. Supp. 2d at 67.
180. Id. at 68-69.
181. Id. at 69.
182. Id. at 70.
183. Letter from Robert S. Mueller III, Dir., FBI, to Senator Orrin G. Hatch, Chairman, Comm. on the Judiciary 1 (July 21, 2004), available at http://www.pogo.org/m/hsp/hsp-040721-Mueller.pdf.
184. See Edmonds, 323 F. Supp. 2d at 77-82 (concluding, after in camera, ex parte review of classified government declarations but no review of purportedly privileged documents and without any discussion of alternatives to dismissal, that successful invocation of Privilege necessitated dismissal).
185. 437 F. Supp. 2d 530 (E.D. Va. 2006), aff'd sub nom. El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007).
186. El-Masri, 437 F. Supp. 2d at 532-35 (E.D. Va. 2006).
187. Complaint at 12, El Masri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 2006) (No. 1:05cv1417) available at http://www.aclu.org/images/ extraordinaryrendition/asset_upload_file829_22211.pdf.
188. El-Masri, 437 F. Supp. 2d at 535.
189. Id. at 537-38.
190. El-Masri, 479 F.3d at 308.
191. Id.
192. Id. at 309.
193. Id.
194. Id. at 313.
195. El-Masri, 479 F.3d at 312-13.
196. Id. at 302.
197. See supra notes 118-20 and accompanying text for a discussion of the NSA surveillance program.
198. See, e.g., Al-Haramain Islamic Found., Inc. v. Bush, 451 F. Supp. 2d 1215, 1225 (D. Or. 2006) (noting that government had already "lifted the veil of secrecy on the existence of the Surveillance Program" and that plaintiffs sought only to establish lawfulness of government's interception of their communications); ACLU v. NSA, 438 F. Supp. 2d 754, 765 (E.D. Mich. 2006) (acknowledging that plaintiffs had established their prima facie case based solely on public statements regarding challenged "Terrorist Surveillance Program"), vacated, 493 F.3d 644 (6th Cir. 2007).
199. See, e.g., Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 1011 (N.D. Cal. 2006) (denying government motion to dismiss or, in the alternative, for summary judgment, on state secrets grounds); ACLU, 438 F. Supp. 2d at 782 (granting plaintiffs' motion for partial summary judgment and holding that NSA's terrorist surveillance program violates Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C)).
200. See, e.g., Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 920 (N.D. Ill. 2006) (granting government's motion to dismiss action on state secrets grounds).
201. See Advisory Committee's Note to Preliminary Draft of Proposed FED. R. EVID. 509(e), 56 F.R.D. 183, 254 (1973); accord Ellsberg v. Mitchell, 709 F.2d 51, 64 (D.C. Cir. 1983) (noting effect of government's invocation of state secrets privilege is well settled and results only in unavailability of evidence without affecting case's proceeding). It should be noted that the final version of the proposed rule was not entirely in accord with the ideas of its original drafters. See supra notes 106-13 and accompanying text for a discussion of intent of original drafters compared to the final version of the proposed rule.
202. 345 U.S. 1 (1953).
203. 92 U.S. 105 (1875).