Assertion of State Secrets Privilege in Civil Litigation

February 14, 1979

79-14 MEMORANDUM OPINION FOR THE ASSISTANT DIRECTOR, LEGAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION

Assertion of State Secrets Privilege in Civil Litigation

This responds to your request for the views o f this Office regarding two questions: (1) whether properly classified information qualifies for nondis­ closure in civil litigation on the basis o f the privilege for state secrets; and (2) whether a claim o f privilege for state secrets may be asserted concurrently with other claims o f privilege for the same inform ation. Your Office states that these questions are particularly im portant in litigation where the parties seek information pertaining to the identity o f informants. The issue whether classified information satisfies the requirements o f the state secrets privilege raises two different but related questions: The first is whether classified material is protected by the state secrets privilege—i.e., “ matters relating to international relations, military af­ fairs, and public security.” 8 Wigmore, Evidence § 2378, at 794 (M cNaughton rev. 1961). See also 8 Wright and Miller, Federal Practice and Procedure § 2019, at 158 (1970). Even when the inform ation falls within these categories, however, it does not necessarily qualify for the state secrets privilege; its disclosure must also pose some risk o f harming the national security. As the Supreme C ourt stated in United States v. Reynolds, 345 U.S. 1, 10 (1953), the Government must satisfy the court, from all circumstances o f the case, that there is a reasonable danger that compulsion o f the evidence will expose military matters which, in the interest o f national security, should not be divulged. The lower courts have also required the Government to dem onstrate a reasonable danger that the disclosure o f such information would be detrimental to the national security. See, e.g., Jabara v. Kelley, 75 F.R .D . 475, 483, 489, 492 (E.D. Mich. 1977); Kinoy v. Mitchell, 57 F.R .D . 1, 9 (S.D.N.Y. 1975). See also 8 Wigmore, Evidence § 2212a at 159 (McNaughton rev. 1961).

In our view, properly classified material would satisfy these two separate criteria. Section 1-301 o f Executive Order No. 12065 prohibits the classification o f inform ation unless it concerns: (a) military plans, weapons, or operations; (b) foreign government inform ation; (c) intelligence activities, sources or methods; (d) foreign relations or foreign activities o f the United States; (e) scientific, technological, or economic matters relating to the national security; (0 United States Governm ent programs for safeguarding nuclear materials or facilities; or (g) other categories o f inform ation which are related to na­ tional security and which require protection against unauth­ orized disclosure as determined by the President, by a person designated by the President pursuant to Section 1-201, or by an agency h ea d .1 Since all these m atters appear to be encompassed by the state secrets privilege—material relating to military affairs, international relations, or the national security—it seems that the first requirement o f the state secrets privilege is met. Properly classified inform ation would also appear to meet the second requirement o f the state secrets privilege—i.e., whether there is a reason­ able danger that disclosure would be detrim ental to the national security. Section 1-302 o f the order provides that, even though inform ation may satisfy the criteria set forth in section 1-301, it may not be classified unless “ unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security.” If this determination is properly made, the inform ation would, in our view, satisfy the criteria for the state secrets privilege. Regarding the question o f inform ants, we believe that, where the iden­ tities (or inform ation that would disclose the identities) o f national secu­ rity inform ants has been properly classified, the state secrets privilege may be asserted with regard to such inform ation. For example, in Pan American World Airways, Inc. v. A etna Casualty and Surety C o., 368 F. Supp. 1098, 1140-41 (S.D .N .Y . 1973), a ff’d 505 F. (2d) 989 (2d Cir. 1974), the court upheld a claim o f privilege based on the Central Intelli­ gence Agency’s (CIA) representation that the disclosure o f the identity o f its sources could result in a loss o f inform ation to the CIA and in serious physical danger to the sources. Similarly, in United States v. American Telephone and Telegraph Co., 419 F. Supp. 454, 457 (D .D .C . 1976), remanded fo r further efforts at negotiation, 551 F. (2d) 384, 388 (D.C.

' Section 6-104 o f the Executive order defines the term “ national security” as the “ na­ tional defense and foreign relations o f the U nited States.”

Cir. 1976), remanded fo r further efforts at accommodation, 567 F. (2d) 121 (D.C. Cir. 1977), the Government was concerned whether disclosing the identity o f our counteragents would diminish their usefulness or even en­ danger their lives. This was only one o f several concerns advanced by the Government. While neither the district court nor the circuit court inde­ pendently evaluated these concerns, both courts concluded that legitimate national security considerations were at stake in the Executive’s withholding o f information from the Congress, thus indicating that the identity o f infor­ mants may be a legitimate national security concern. Although properly classified inform ation is generally entitled to the pro­ tection o f the privilege for state secrets, the fact that inform ation is properly classified does not, in itself, require the assertion o f the state secrets privi­ lege. Rather, the D epartm ent’s decision to assert the privilege is to be made on a case-by-case basis, taking into account not only the sensitivity o f the information, but also factors not considered in the classification process such as the public interest in releasing the inform ation in the context o f par­ ticular litigation and the effect which invoking the privilege would have on its long-term viability. Cf. Executive Order No. 12065, §3-303 (recognizing that the need to protect properly classified information may be outweighed by the public interest in disclosure o f the inform ation). Moreover, the courts have insisted that the privilege must be formally claimed by the head o f the departm ent that has control over the inform ation, after actual per­ sonal consideration by that official. United States v. Reynolds, supra, at 7-8; Jabara v. Kelley, supra, at 487-88; Kinoy v. Mitchell, supra, at 8. A representation that the inform ation is classified is not sufficient; the courts also require representations that the criteria o f the state secrets privilege are met and require sufficient additional inform ation in order to make an in­ formed judgm ent as to the merits o f the claim. See, Kinoy v. Mitchell, supra, at 9-10; 8 Wigmore, Evidence § 2379, at 810 (M cNaughton rev. 1961) (“ the government must make a showing supporting its plea o f privilege” ). A proposed assertion o f the state secrets privilege would normally thus cause two different sorts o f review o f the inform ation at issue. First, review­ ing the information and preparing the requisite representations should en­ tail a reevaluation o f the sensitivity of the inform ation within the govern­ ment and an assessment o f the propriety o f invoking the privilege. See 2 Weinstein Evidence § 509[04], at 509-3 (1977). Second, before it may ac­ cept the claims, the court is also obliged to satisfy itself that the invoking o f the privilege is appropriate. United States v. Reynolds, supra, at 9-11; Jabara v. Kelley, supra, at 484, 491. Your second question addresses the issue whether the state secrets privilege may be asserted concurrently with other claims o f privilege for the same inform ation. Although we have been unable to find any court decision on p o int,2 we see no reason why two separate privileges may not

' Several decisions, however, have recognized that the concerns underlying different privi­ leges may arise with respect to the same inform ation or docum ent. Machin v. Zuckert, 316 F. (2d) 336, 339 (D .C. Cir. 1963); Jabara v. Kelley, 62 F.R .D . 424, 425, 431 (E .D . Mich. 1974).

be asserted with respect to the same inform ation. The foundation for all o f the G overnm ent’s privileges is, ultimately, the public interest. In our view, the public interest could only be properly served if, in a situation where the concerns underlying a particular piece o f inform ation relate to two or more o f the Governm ent’s privileges, all o f those concerns were addressed before a decision is made to release the inform ation. The Government should thus be able to assert all available privileges in order that a court may make an informed judgm ent whether the public interest would actu­ ally be served by disclosure. This conclusion is supported by other aspects o f the law. The general policy o f the law is to allow for alternate or multiple claims or defenses in civil litigation. See Fed. R. Civ. Proc. 8(e). In fact, in the analogous con­ text o f Freedom o f Inform ation litigation, the Government frequently claims that inform ation is exempt from disclosure under two or more ex­ emptions (which are themselves often founded on common-law privileges). See, e.g., Weissman v. CIA, 565 F. (2d) 692 (D.C. Cir. 1977). We thus believe that, if the state secrets privilege and another privilege are both legitimately applicable, the Governm ent as a legal m atter may assert each o f them at the same time. W hether it should actually do so is, o f course, a judgm ent that must be made in each case by the attorneys in charge o f the case.3

J o h n M . H a rm o n Assistant A ttorney General Office o f Legal Counsel

’ This determ ination might be based on both the relative weight o f the privileges and the ease in which they may be asserted. For example, even though the inform er’s privilege is a qualified one, see, Roviaro v. United States, 353 U.S. 53 (1957), and may thus afford the in­ form ant’s identity less protection than the state secrets privilege, it might also be less burden­ some to assert. While there is some contrary authority, it appears that the privilege need not be asserted by the head o f the agency, but may be advanced by any appropriate represent­ ative o f the Governm ent. See, Kinoy v. Mitchell, supra, at 11 n. 36; M cCorm ack, Evidence § 111, at 237 (1972). Cf., Bocchicchio v. Curtiss Publishing Co., 203 F. Supp. 403, 406 n. 7 (E .D . Pa. 1962). But see, Mitchell v. Bass, 252 F. (2d) 513, 516'(8th Cir. 1958); Fowler v. fVirtz, 34 F.R .D . 20, 23 (S.D. Fla. 1963).