5/8/17 David D’Amato on the legal origin of the US government’s State Secrets Doctrine

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And I'm proud to say we've been running some articles by David D'Amato there at the Libertarian Institute.
This one is not online yet except for subscribers to The Future Freedom at fff.org slash subscribe.
But it's in their journal.
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The journal The Future Freedom.
And this one is the May edition of The Future Freedom.
Has this great piece by David D'Amato, The Legal Origin of the State Secrets Doctrine.
Welcome back to the show.
How you doing?
Great, Scott.
It's great to be with you.
Thanks for having me.
Very good to have you here.
So the State Secrets Doctrine.
Very important here.
What year was it that Congress passed this law saying that the executive branch can keep secrets from the courts, David?
Well that's just it.
Congress never never passed a law to give the executive branch that power.
The executive branch simply irrigated the power to itself.
And the Supreme Court acquiesced to that in a case called United States versus Reynolds.
All right.
So take us back then.
What happened here?
So the privilege has sort of always existed in common law.
But this case of United States versus Reynolds sort of gave it a broader scope and more power for the executive.
And what happens in this case is at an Air Force base near Georgia, there was a plane crash and several government contractors died in the crash.
And their families brought suit under the Federal Tort Claims Act.
In the course of this litigation, the plaintiffs asked the government to produce certain documents, which is, you know, if you know anything about litigation, that's what happens.
And the documents are supposed to be turned over.
But the government, using this privilege or asserting this privilege, said, no, we don't have to produce these or show these, because any production of these materials at all would put sort of national security at risk.
And through this case, the privilege has only ever sort of been broader since then, especially since 9-11.
The state secrets doctrine is something that's asserted quite often by the government to sort of police itself to not, you know, to not give the judicial branch, which is supposed to be a co-equal branch, the opportunity to look at the documents and make a determination about whether they should become part of the litigation and the fact-finding in the case.
Yeah.
So, I mean, that seems, I guess I never understand that too much.
I guess it makes sense a little bit that a judge would want personally to not be responsible for a big decision or something like that.
But it seems odd when they make decisions like, you know what, this isn't going to be up to us to decide anymore.
We're going to let one side of the case decide what should remain secret, even from the judges.
I mean, that doesn't make any sense on the face of it.
These are federal judges.
They all, if they can't get security clearance to hear a case, then they shouldn't be a federal judge.
What are we even talking about here?
Where did this come from?
Right.
Well, you're exactly right.
I mean, if a judge has any responsibility at all to make determinations just like this about what kinds of evidence ought to come into a case, that's the responsibility of the judicial branch.
But as you say, this doctrine allows the government to police itself, to be subject to no judicial review at all.
So, it sort of lifts itself outside of the traditional three-part constitutional structure that we have, where, you know, in theory, we think, okay, the judicial branch is going to review the materials and not stand on one side with one party in a piece of litigation.
That sort of undermines the entire credibility of the judiciary when, as you said, now they're sort of standing on the government side against these plaintiffs who are coming to court seeking redress and seeking justice, now, all of a sudden, the scales are tipped in favor of the government.
And as we know, this happens all the time, where the judicial system systematically favors the government, whether it's in national security cases like we're talking about or criminal matters or whatever, this is sort of something that we're aware of, but perhaps people aren't as aware as they might be of how this goes on.
And now, so if I understand it right, too, there were, I don't know if there was a change in the actual decision making of the courts, or if this was a different, you know, just the result of a different tack taken by the executive branch.
But it seemed like, I believe the history was that in the Bush years, they went from excluding this and that evidence to just excluding entire cases.
And I guess it had to have been the judges that went along with that.
But did they have to make up a whole new doctrine to say, or was that just extending the doctrine one step further, really?
Yeah, I think, you know, depending on how you look at it, I think it's so extensive at this point that it really does look like a different doctrine.
But you're absolutely right.
During the Bush years, after 9-11, the government would essentially argue, look, if we litigate this at all, if we have any fact-finding whatsoever, if we have any testimony, any exchange of documents whatsoever, that fact on its own will put national security at risk.
So, right, as you said, they used this as opportunities not even to give a plaintiff a day in court, not even what the Reynolds plaintiffs had.
So, right, it completely precludes litigation, which means that the government is just driving off-road with no accountability at all, no check on its power, and the judiciary has completely sort of deferred to the government and acquiesced in this to the destruction of basically the entire constitutional edifice.
Well, now, so you're saying here that they argued in the first place, the courts, when they decided this, it's sort of reminiscent of Scalia saying, oh, we don't need the exclusionary rule for the Fourth Amendment because the police are so professional now that we don't need accountability for them because we know that they'll always act right in the first place.
The same kind of thing here where they said that, well, listen, the executive branch, the Air Force in this case, or whatever national security state organization that we're talking about or whatever, they obviously know what needs to be secret, what doesn't, and apparently, if I read this right, they sort of imagined a somewhat limited scope for the application of this thing.
But now that it seems that it's gotten so far out of hand compared to the original conception of it, I wonder if any of the courts are pushing back at all and saying, well, actually, we think this does deserve a hearing and we are going to override you and say that we get to decide, not you, or anything like that.
The courts really have been very reluctant to do that.
And in several sort of high-profile cases, both in the Bush administration and the Obama administration, they've used this privilege to, again, just completely preclude litigation.
There was one case a few years back called the Jefferson Data Plane case, where that company, Jefferson, was a Boeing subsidiary who was implicated in the transfer of prisoners in the government's sort of extraordinary rendition activities.
An extraordinary rendition is kind of a fancy, nice-sounding euphemism for illegally kidnapping somebody and bringing them to a foreign country that isn't a part of international law conventions on, say, torture, and torturing them with, of course, U.S. government oversight in these sort of black sites, free of oversight.
And then these prisoners were transferred here to a U.S. prison.
And in that case, in Jefferson Data Plane in the Ninth Circuit, it went to a full panel in the Ninth Circuit, and they eventually said that the government was just fine to preclude these plaintiffs who'd been tortured from having their day in court, which is really extraordinary if you think about it, that the judiciary would simply just give this government such overriding power to hold itself above justice and the judicial process.
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Well, now, so I don't know if this ever went anywhere.
But wasn't there a thing where the waterboarding, the tortures, Mitchell and Jessen, that they were being sued and the court said, well, you know, you might have been contractors for the CIA, but you weren't CIA.
So I'm going to go ahead and let this continue.
And I guess now I think I'm not certain that was over the state secrets doctrine or something else.
I thought it was, though, that they were deciding that in that in that case, they were going to go ahead and let the case proceed.
Although for all I know, it was later dismissed or or it's still in process, or I have no idea, honestly.
It's a good question.
I'm not familiar with the case, but I know that oftentimes this state secrets doctrine is just one sort of one piece of the argument that they have to try to prevent these claims from from actually seeing a day in court.
So it's just a piece, you know, a small piece in a in a sort of larger panoply of legal tools that the government has now since, especially since 9-11, but really before that and just finding new and creative ways to escape accountability for it, for its actions, whether they be, you know, torturing people, extraordinary rendition, whatever it is, they find these sort of creative arguments for why they shouldn't be subject to the law like everyone else.
All right.
But now, so the the U.S. government was already pretty old by the 1950s and they had had a whole bunch of wars and yet they didn't have an official secrets act.
I think in England it's called or in the United Kingdom it's called the Official Secrets Act, but they don't have one here.
Is that for some reason, was it determined that it had been it was previously considered unconstitutional or was it just that they hadn't gotten around to it yet?
Or do you have an opinion about that?
Well, I think from the beginning, I think even from the from the American Revolution, the framers were skeptical.
So in England it came it sort of was an emanation from the what's just called the crown privileges.
And that concept sort of embraces a whole bunch of different powers that the crown had that that the framers looked askance on and were skeptical of.
So I think that for that reason, you know, you don't have a sort of legislatively defined privilege.
And it sort of just grew up out of case law and the common law and then sort of comes to a head with, as I said, the Reynolds case, which sort of broadened it.
And then even as you said, it's been broadened significantly from there.
So now we're in a position where the the doctrine has been used to do all kinds of things that probably couldn't have ever been contemplated by, you know, the founding generation or, you know, subsequent generations.
Yeah.
Again, because this seems pretty unnecessary, right?
I mean, if without this doctrine, the state secrets doctrine, then well, I don't know.
Maybe I'm wrong about that.
I guess their argument would be going back to this original case, pretend that they hadn't lied and that they weren't just covering up their culpability, but they really were covering up secrets.
They had a secret electromagnetic pulse weapon on that plane and they had to keep that.
Now, so do they have an argument there or the courts would have kept that secret anyway, David, or what?
So, yeah.
So I think the big I think they probably would have had an argument.
Is it one that I would agree with?
I don't know.
It would probably depend on the kind of particularities of the facts in a given case.
But I think the big problem, as we discussed, is, you know, now the judge isn't even reviewing the evidence in camera.
So in his chambers or in her chambers, now the judiciary is completely taken out of it and the government is just policing itself.
It's saying, oh, no, really trust us on this one.
And in the courts are saying, OK, sure.
Sounds good to me.
In other words, as a lawyer, you're saying you're saying if there really was some real top secret secret that needed to be kept, then you'd at least be willing to entertain that.
But only if it's the judge deciding, not if it's the government itself.
Correct.
Yeah, you can't have the you can't have the government policing the boundaries of its own of its own evidentiary privilege for reasons that are obvious.
It'll just claim privilege over everything.
And you'll have a situation exactly like the one we actually have now, where the government is just held completely above the what we think or what we supposed to be a co-equal branch of government.
Why does why does the executive branch, just by saying the magic word national security, get to exempt itself from this?
You know, I think.
It'd be much better if if we had the judge actually looking at the evidence and deciding what the real risk was, because as we know, we know from the run up, I mean, for one, from the Reynolds case, but we know from countless subsequent cases, too, that often when the government is invoking national security, it's not really about preventing harm to the American people.
In any case, it's really just because the government doesn't want, you know, the citizens to see what it's up to, because, you know, it's not a situation where there's some list of covert spies that, you know, if it gets out, these people will be at risk.
It's just that the government invokes national security and then everybody's supposed to say, OK, that's fine.
Right.
I mean, that's kind of part of the irony of this is all these people have virtual total impunity, immunity licenses to kill and lie and do anything in the world with no accountability.
And if you even ask them or hear their side of it, they talk about what they call embarrassing information coming out, embarrassing information like, yeah, we knowingly put your husbands on a plane that we knew had a bad engine and then it fell out of the sky.
Embarrassing information like, yeah, some of the people that we kidnapped and tortured even to death were cases of mistaken identity.
Yeah, because that's actually the worst they have to face is embarrassment, possibly that the taxpayers would have to shell out some money in a civil case against somebody or something like that.
Yeah, it's not that any of them would ever go to prison for any of these things.
No, right.
I mean, I think that's exactly right.
When they talk about national security and they say that safety concerns dictate that X, Y, Z information can come out, that you're right.
What they're really talking about is we don't want the citizens to see what we're up to because a lot of this stuff is illegal by anyone's lights and by anyone's standards under both our own constitutional law and international law.
And they know that.
They're not stupid.
They know that the NSA, the CIA, we all know now that they're sort of driving again, driving off road and breaking the law sort of with impunity.
And that's what they're concerned about people seeing.
And that's why they don't want to have these plaintiffs having a day in court and sort of shedding light on throwing a spotlight on some of these really bad behaviors.
If it were the safety of the American people, that was really the concern.
The government wouldn't be doing most of what it does in the national security and foreign policy arena, much of which most of which makes us a lot less safe here.
Yeah.
Now, my question about that.
So, I mean, not that they ever would or anything, but I guess the remedy at this point would be for the people to make their Congress pass a law that says that this is not the law, right?
Yeah, I think, you know, I think Congress should in Congress has tried over the years to act in this area and sort of limit limit those powers.
But we what we see is that, you know, we've even seen lately that we know for a fact that national security officials have both spied on members of Congress in the House and the Senate and and lied under oath to them.
So they don't have a lot of moral scruples in the executive branch about this stuff.
And right now it looks like Congress and the courts, the other two branches of government are sort of left without left without teeth and claws to do anything about it.
We sort of have executive branch that has, you know, people call it Gene Healy calls it the imperial presidency and so forth.
And I think that's what we're looking at here.
There's not a whole lot of actual legislative oversight, oversight by elected officials who are responsible to us going on anymore.
All right, you guys, that is David D'Amato.
The article is in the Future Freedom.
You got to subscribe, go to FFF.org slash subscribe or wait a couple of months and it'll be on the website.
It's the legal origin of the state secrets doctrine in the Future Freedom, the monthly journal of the Future Freedom Foundation.
And David, I'm sorry I gave you short shrift on your introduction there.
A policy advisor at the Future Freedom Foundation, an attorney and an adjunct law professor and a regular contributor at the Cato Institute's Libertarianism.org and a policy advisor at the Heartland Institute.
So, yes, very good, very impressive and very good article.
And I really appreciate your great interview on the show today as well.
Thank you, Scott.
I appreciate you having me on.
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