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In U.S. v. Reynolds, 345 U.S. 1 (1953), the U.S. Supreme Court for the first time upheld the state secrets privilege, which allows the government to assert that the disclosure of information will be harmful to national security. The wives of three civilians killed in the crash of a B-29 airplane sued the government for negligence and sought access to the accident report and the statements of three surviving crew members. The government argued that the documents contained state secrets. Looking at the declassified documents today, no state secrets can be found. Because the government had misled the court, the three families returned to court in 2003 with a coram nobis, or fraud against the court, case. The 3d U.S. Circuit Court of Appeals decided on Sept. 22, 2005, that the principle of judicial finality trumped all other values . Herring v. U.S., 424 F.3d 384, 386 (3d Cir. 2005), cert. denied, May 1, 2006. The value given short shrift by the 3d Circuit is the need to protect the integrity, independence and reputation of the federal judiciary. The Supreme Court in Reynolds accepted at face value the government’s assertions about state secrets. By refusing to examine the documents, the court appeared to function as an arm of the executive branch. When courts operate in that manner, litigants and citizens lose faith in the judiciary, the rule of law and the system of checks and balances. Three situations If the government asserts state secrets, courts can advise the executive branch that if it insists on treating the privilege as an absolute, even to the point of withholding requested documents from in-camera inspection, it will lose the case. That judicial leverage applies broadly in three situations: when the government prosecutes a criminal case, when it brings a civil case and when it is a defendant, as it was in the tort claims case of Reynolds. In criminal cases, it has long been recognized that if federal prosecutors want to charge someone with a crime, the defendant has a right to documents needed to establish innocence. In the decade before Reynolds, federal courts understood that the judiciary should not defer to executive departments and allow the suppression of documents that might “tend to exculpate.” U.S. v. Andolschek, 142 F.2d 503, 506 (2d Cir. 1944). When the government “institutes criminal proceedings in which evidence, otherwise privileged under a statute or regulation, becomes importantly relevant, it abandons the privilege.” U.S. v. Beekman, 155 F.2d 580, 584 (2d Cir. 1946). When the government initiates a civil case, defendants also have a right to obtain federal agency documents. Lower courts often tell the government that when it brings a civil case against a private party, it must be prepared to either surrender documents to the defendant or drop the charges. Once a government official seeks relief in a court of law, the official “must be held to have waived any privilege, which he otherwise might have had, to withhold testimony required by the rules of pleading or evidence as a basis for such relief.” Fleming v. Bernardi, 4 F.R.D. 270, 271 (D. Ohio 1941). If the government fails to comply with a court order to produce documents requested by defendants, the court can dismiss the case. The government “cannot hide behind a self-erected wall [of] evidence adverse to its interest as a litigant.” NLRB v. Capitol Fish Co., 294 F.2d 868, 875 (5th Cir. 1961). Responsibility for deciding questions of privilege rests with an impartial independent judiciary, not the party claiming the privilege. Finally, when a private party brings a case against the government, courts can force the government either to release requested documents or lose the case. That was the position taken by both the district court and the 3d Circuit in Reynolds. Only at the level of the Supreme Court was the government allowed both to withhold documents and to prevail on the merits. The fact that the documents, once declassified, contained no state secrets produced a stain on the court’s integrity and a loss of confidence in the judiciary’s ability to exercise an indepen-dent role. On the basis of ambiguous statements produced by the government, the Supreme Court assumed that the claim of state secrets had merit. By failing to examine the documents, the court risked being fooled. As it turned out, it was, raising grave questions about the capacity of the judiciary to function as an independent, trusted branch in the field of national security. The courts must now take care to restore confidence in the judiciary, in the sanctity of the courtroom and in the system of checks and balances. The state secrets privilege should be treated as qualified, not absolute. Otherwise there is no adversary process in court, no exercise of judicial independence over available evidence and no fairness accorded to private litigants who challenge the government. Louis Fisher is author of the forthcoming In the Name of National Security , which analyzes U.S. v. Reynolds . He is a specialist in constitutional law with the Law Library of the Library of Congress. The views expressed here are personal, not institutional.

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