A state secrets or executive privilege is often claimed in the interest of national security, thereby
foreclosing any disclosure in civil or criminal cases. Given the current state of the law, what recourse is
available to those individuals whose injury resulted from government policy related to national security
matters? What, if any, additional recourses should be available?
The premise behind the State Secrets protection Act is to protect the interest of national
security in civil litigation by not allowing certain evidence that could potentially cause harm to
the nation if released to the public. We have seen many cases over the course of the history of the
United States that demonstrated how in some cases the disclosure of information could cause
harm to national security. Some of the cases mentioned in this week’s reading was Totten V
United States, 92 U.S. 105 (1875) and United States v Reynolds, 345 U.S. 1 (1953) (Dwyer,
2015p).
In Totten v United States, it was found that William Lloyd was contracted by President
Lincoln to go behind enemy lines and provide intelligence on rebel forces. For his services he
was to be paid 200 dollars a month. If was decided by the U.S. Supreme Court that though he
was contracted by the president, it was in the interest of national security that the contract not be
disclosed. Additionally, Lloyd was only compensated for his expenses and not for the agreed
upon contract. (Dwyer, 2015p).
In United States v Reynolds, it was found that a lawsuit was claimed under the Torts
Claim Act for the death of three civilians during an Air Force plane crash. The government cited
privilege against discovery due to the nature of the flight and that it would be detrimental to
national security. The court agreed and reversed and remanded the case. (Dwyer, 2015p). This
was a landmark case which sited the first use of privilege in the courts.
Looking back into further cases we can see that executive privilege do not apply if the
party claiming privilege is committing or has committed a crime or involved in criminal activity.
This can be seen in United States v Nixon and Clinton v Jones. In the Nixon case the supreme
court ruled that the executive privilege did not apply due to the acts of Watergate were criminal
in nature and spoke to the duties and character of the president. In Clinton v Jones, this too
showed that executive privilege is not protected due to the activities occurring prior to the
presidency (Executive Privilege and the Supreme Court 2021).
Many look at the appointed executives that claim privilege and see that they are hiding
things to protect themselves. In many instances this could be the truth. Looking through history
we have only seen this privilege applied minimally prior to 1950, and from then it has been
sought after fairly frequently. There are many factors that must take place to assume executive
privilege in any case. The problem that we have is that it is used more frequently as a scapegoat
clause than something to protect the nation. Many safeguards should be in place to protect those
that are affected by executive privilege and should be afforded the opportunity to have cases
decided in civil court.
We can not assume that all people in higher offices are beyond corruption or crime. We
see this many times through history. As a society we must hold those accountable for their
actions and see to it that they are punished within the guidelines of the law that the nation was
founded upon. We must allow the court to help decide or recourse to prevent and assist those
affected. Some recourse that should be in place are if the activity resulted in a death of a citizen
or federal agent, then executive privilege should not be allowed. Only under certain
circumstances should this be authorized to be used. It should never be the constant but should be
the exception. If it continues to be used as it is now, then we will only continue to advance
corruption and not hold those accountable for their actions.
Reference:
Dwyer, T. P. (2015). In Legal issues in homeland security: U.S. Supreme Court cases,
commentary, and questions. essay, Looseleaf Law Publications, Inc.
Executive Privilege and the Supreme Court. Close Up Foundation. (2021, June 2).
https://www.closeup.org/executive-privilege-and-the-supreme-court/.
S. Rept. 110-442 - STATE SECRETS PROTECTION ACT. (2021, June 3).
https://www.congress.gov/congressional-report/110th-congress/senate-report/442
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