Roundtable #15 | State Secrets

Τhe views in these articles are those of the individual authors and not of the Columbia Undergraduate Law Review

Section I

Integral to a strong republic is the existence and protection of its secrets. Failing to safeguard sensitive information could endanger the safety and security of a nation, as well as that of its citizens. Throughout history, nations across the globe have kept secrets — whether they involve the preservation of military strategies, intelligence, or covert communications, making sure that a country’s secrets stay secret is critical to the establishment and conservation of their power.

The guiding framework for the keeping of secrets in the United States, at present, is known as the state secrets privilege. This evidentiary rule grants the government the ability to withhold information when providing it would place national security at risk [1]. The roots of this doctrine span far beyond the present: the state secrets privilege has origins in the Crown Privilege, a rule once fundamental to English society. The Crown Privilege granted ultimate power in all legal matters to the Crown. The rationale underlying this rule follows one that has existed for millennia, mainly that a ruler will act in the interests of its subjects. Of course, whether that is true in practice is not always so clear.

In constructing their new government, the American founders thought critically about the concept of secrecy in English government. Due to their knowledge of the English legal tradition, they understood just how critical secrecy is to a successful — or at least functional — society. Consequently, the framers designated the Executive Branch the keeper of secrets [1]. Indeed, the breadth of powers afforded to the Executive Branch in the Constitution’s second article has since been understood by others to include the dealings of confidential information [2].

The validity of the state secrets privilege has been upheld by the Supreme Court on various occasions, most notably in United States v. Reynolds, 35 U.S. 1 (1953). This landmark legal case, decided in 1953, dealt with the crash of an Air Force B-28 aircraft in Georgia. The families of those who died in the crash had sued the government for negligence and requested access to the Air Force’s accident investigation report. The Air Force, allegedly in an effort to protect information within the report concerning “secret electronic equipment,” denied the families’ request. In a 6-3 opinion by then Chief Justice Fred Vinson, the Court held that the government may withhold information, however crucial to a case, from the public to protect national security [3]. The Court stated that “in each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.” Whether the government can refuse to disclose information by citing the state secrets privilege is dependent on the necessity of a piece of information to a given case. Balancing aside, however, “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Id. at 11. Accordingly, pursuant to Reynolds, while “the claim of privilege should not be lightly accepted” when there is “a strong showing of necessity,” the Government will always prevail when there is a risk that military secrets might be disclosed.

Yet, the power of a government to conceal information, however well established or justified, comes at a heavy price. A deep conflict exists between the obligation of a democratic government to keep its citizens informed with the need to maintain secrecy for the protection of those citizens. This tension — between national security and transparency in a deliberative democracy — is known as the “democratic dilemma [4].” In this respect, the government’s desire to bar the disclosure of information necessarily collides with individual rights and liberties and freedom of the press [1]. The state secrets privilege has, for example, kept evidence regarding the use of torture and illegal spying on Americans from seeing the light of day [5]. It has also not simply prevented information from getting in the hands of individuals but Congress as well.

The abridgment of civil rights and civil liberties by the government is just as relevant now as it was when considered in the Constitution’s drafting – relevant to the lives of every American citizen, and to the lives of every citizen of the world. Thus, because it is important to ensure that the state strikes the right balance between respecting personal freedoms and protecting national security, this piece will evaluate the state secret policies of the United States and their future.

by Dylan Andres

Section II

As has been established, the state secrets privilege clearly grants the US government the ability to withhold information that poses a potential threat to national security. However, the discussion on the current policies regarding US state secrets would be inadequate without addressing three crucial elements of the law: the Treason Clause, the Freedom of Information Act, and the Espionage Act. These three legal principles, in conjunction with the state secrets privilege, lay the foundation for the United States’s current policy on state secrecy and the extent of government censorship. 

The framers of the US Constitution heavily valued the loyalty that citizens owed to their home country. As a result, they included treason in the constitutional order—treason is the only crime distinctly defined in the constitution and known as “the highest of all crimes” [1]. At its core, treason is limited to “(1) ‘levying war’ against the United States; or (2) ‘adhering to [the] enemies [of the United States], giving them aid and comfort’”[2]. Although treason is commonly perceived as merely the betrayal of one’s country, betrayal alone does not make one guilty of treason [3]. Indeed, a treason conviction requires both concrete action and a deliberate intent to betray. These two conditions are coexistant; subversive and traitorous thoughts or speech alone do not suffice to secure a conviction. As a result, treason convictions are incredibly rare, with only 1 official conviction since 1952. 

This conviction occurred in United States v. Gadahn 18 U.S.C. (2005), during which Adam Gadahn (more commonly known as Azzam al-Amriki) was found guilty of giving aid and comfort to al-Qaeda with an intent to betray the United States. Gadahn appeared in countless examples of al-Qaeda affiliated propaganda, made direct threats to U.S. security, and released US state secrets to al-Qaeda forces. Because the court had sufficient evidence of Gadahn’s concrete action and deliberate intent to betray the United States, prosecutors surpassed the burden of proof and found Gadahn guilty. With a treason conviction and the proof of a threat to the United States, national security advisors authorized the execution of Adam Gadahn by drone strike, highlighting the sheer gravity that the US approaches treason with [4].     

The Freedom of Information act (FOIA) is also another integral understanding of the United States’ current policies on state secrets. Commonly known as the “law that keeps citizens in the know about their government,” the FOIA is meant to expand government transparency to citizens [5]. However, the law includes nine exemptions which generally permit government officials to withhold any information for personal privacy, national security, privileged communications, and law enforcement interests. Furthermore, the FOIA progresses the “democratic dilemma” introduced in the preceding section: the mere existence of the Freedom of Information Act represents a commendable effort to maintain the democratic ideal of transparency, yet the US Government’s ability to withhold any information based on nine vague FOIA exemptions seems to undermine the legitimacy of the act. It seems rather paradoxical that the “law that keeps citizens in the know about their government” actually grants the ability to withhold almost any amount of information from the public utilizing loopholes through the FOIA exemptions [6].

Lastly, the understanding of the Espionage Act of 1917 is integral to the discussion of current policies regarding U.S. state secrets. Enacted by the Wilson administration shortly after the United States entered World War I, the Espionage Act prohibits obtaining information that can pose a threat to national defense or that may be used for the “injury of the United States or to the advantage of any foreign nation” [7]. Such prohibited information can take the form of pictures, written documents, audio recordings, copied descriptions, or any other medium that could harm national security. Although enacted in 1917, much of the original Espionage Act remains unchanged, and state secrecy offenders continue to be charged with Espionage Act violations. Most notably, former CIA employee Edward Snowden was charged with violating the Espionage Act for releasing confidential audio recordings and written documents that were deemed as a possible threat to national security. 

However, the Espionage Act has recently come under scrutiny for holding two crucial flaws. First, the law not only criminalizes the release of prohibited or confidential information, but also the discussions of the release of confidential information. This part of the law would mean that news and media coverage, academic analyses, or even casual discussions of Espionage Act violations could also be penalized under the same law. Secondly, the Espionage Act only criminalizes content that poses a threat “relating to the national defense.” As a result, many individuals charged with releasing confidential state secrets have circumvented Espionage Act convictions by arguing the confidential materials did not relate to the national defense [8]. These two crucial shortcomings undermine the gravity of Espionage Act violations. Especially since it has been over a century since the Espionage Act of 1917’s enactment, the law must be clarified and updated to account for modern espionage practices. 

An understanding of the Treason Clause, Freedom of Information Act, and Espionage Act is essential to the discussion on the current U.S. state secrets policy. While this section introduced such policies, the following section will analyze shortcomings and the need for change in these policies. 

by Reet Chatterjee

Section III

Although the state secrets privilege, in conjunction with the Treason Clause, Freedom of Information Act, and the Espionage Act, form the basis of U.S. policy on state secrets, such laws have come under scrutiny for their failure to protect the public interest. Defining and protecting state secrets requires entrusting the government with a power that the public cannot easily check, which gives rise to the tension between prioritizing liberty and national security. 

Critics have raised objections to the Freedom of Information Act’s Exemption 5, which guards sensitive government documents and attorney-client deliberations but has been used to conceal other information that reflects negatively on agency investigations [1]. For example, the Center for Public Integrity attempted to acquire records on Trump’s halt on foreign aid to Ukraine, yet received heavily redacted emails that hid evidence of the President’s misconduct and abuse of power [2]. Such situations are far from uncommon, as the Department of Homeland Security and Equal Employment Opportunity Commission cite the exemption tens of thousands of times every year. Although the FOIA Improvement Act of 2016 reduced its use by requiring agencies to apply a “foreseeable harm” standard showing that disclosure of the records would result in specific harm [3], even narrowing the scope of exemptions has been insufficient in preserving government transparency: agencies are burdened with over 700,000 disclosure requests every year and often take over a year to respond. Not only does the sheer number of requests make it impossible for government agencies to comply with the law, but enforcing the requirement itself is also an arduous and resource-intensive process. The journalism organization MuckRock even had to pressure the CIA with FOIA lawsuits for three years before they released declassified records on the Internet [4]. 

To protect the purpose of state secrets, the public has little knowledge of their procedures or content, which has made it difficult to negotiate laws over them and thus led to government overreach. This is evident in the controversy over the Patriot Act, particularly Section 215, which allows the FBI to bypass the probable cause requirement by permitting the government to require that individuals release information connected to foreign intelligence investigations, along with prohibiting them from disclosing that they have been the subjects of such requests. This section of the law rose to prominence in 2013, when Edward Snowden leaked classified documents that revealed that the National Security Agency had engaged in a mass phone data collection program [5]. In response to public backlash, Congress ended the program in 2015, demonstrating the importance of whistleblowers in holding the government accountable for expanding its power behind the cover of state secrets.

The issue of state secrets is especially relevant now, as the Supreme Court will soon hear two cases—Federal Bureau of Investigation v. Fazaga and United States v. Abu Zubaydah—on how far the state secrets privilege extends. The former case first arose over a decade ago, when Muslim communities in Southern California claimed they were targets of an FBI operation that violated federal law; in response, the U.S. District Court for the Central District of California dismissed their case, determining that investigating the claims would require violating the state secrets privilege. The case was eventually appealed to the Supreme Court, which will consider whether the Foreign Intelligence Surveillance Act of 1978 that establishes mechanisms for reviewing classified information instead of excluding or dismissing it displaces the state secrets privilege; if it does, the district court will be able to consider the sensitive evidence [6]. The latter case, United States v. Abu Zubaydah, involves the government invoking the state secrets privilege to block information about CIA-sponsored torture when U.S. military forces detained Abu Zubaydah, a former associate of Osama bin Laden, at a CIA dark site in Poland and used “enhanced interrogation techniques” against him. After the Ninth Circuit rejected their assertion of the state secrets privilege to conceal the information, the case proceeded to the Supreme Court with the potential to set a new precedent on the scope of the privilege [7]. 

Both cases highlight the importance of ensuring that our conception of the state secrets privilege preserves the state’s legitimate security interests while not preventing the public from holding the government accountable for human rights violations. Although Congress has passed specific laws like the Freedom of Information Act and the Patriot Act and accompanying exemptions and reforms to delineate where liberty ends and national security begins, the issue’s complexity gives rise to cases that constantly call for debates in the courts, especially in the era of the Internet, which has created new controversies over the public’s unprecedented access to data.

by Amadea Datel

Section IV

In an age of rapid technological advancement, our understanding of security – and the law that governs it is being challenged. Since the internet became available for public use in the early 1990s, an enormous amount of information became available to the general public. Additionally, with the emergence of intelligent computers, state security became concerned with cyberspace and cybersecurity, namely the networks of communications that occur within the country. Indeed, by 2030, the number of “smart devices” that are constantly collecting and analyzing data available on the internet is predicted to reach 50 billion. [1] Consequently, the existing laws concerning State Secrets have to be reevaluated and modified to adapt to the new reality. In response to the rising advancement of technology, the United States Department of Defense added a Cyber Command to its Unified Combatant Commands – the highest levels of military commands that authorize all lower commands and ensure all military branches are “likewise aligned.” [2] 

Additionally, the National Security Agency (NSA) developed several surveillance programs, especially following 9/11 and the Patriot Act. In particular, the NSA developed large-scale surveillance programs that did not require legal warrants to investigate individuals. [3] In 2002, with presidential authorization, the NSA launched a secret program (referred to as Terrorist Surveillance Program (TSP)), which allows it to monitor telephone, email, internet communications without any warrants or judicial approval. In 2007, in the landmark case American Civil Liberties Union v. National Security Agency (ACLU v. NSA), the ACLU argued that TSP was unconstitutional and violated the free speech, associational, and Fourth amendment privacy rights of American citizens. On the other hand, the defendants argued that state secret Privilege dismissed the case. The nature of the TSP program and the monitored communication were classified and the defendants claimed their secrecy was crucial to the security of the country. [4]

However, the court dismissed the defendants’ claim: the materials requested to try the case did not fall under the category of state secrets. The court also upheld that TSP was unconstitutional as it violated the First and Fourth Amendments of the Constitution. As the inherent existence of TSP violated the Constitution, compliance with the Constitution was determined as the only possible relief. [5] Despite this decision, however, on January 31st, 2007 the Sixth Circuit Court of Appeals reversed the ruling of the District Court and the NSA’s surveillance programs did not stop. As mentioned above, on June 6, 2013, Edward Snowden revealed the ongoing monitoring of communications of not only potential criminals or national threats but ordinary citizens as well. [6] In response to the leak and the public (and global) outrage, President Obama assembled a team of five professionals and tasked them to review and strengthen regulations on the NSA’s surveillance projects. [7] As a result, since 2014, there have been additional safeguards concerning the collected data on civilians. While the government has not made all the specific regulations public, there are several notable exceptions, such as the added timeframe of how long the data can be kept. [8] Despite these changes and added checks, the NSA still runs these programs and is legally allowed to continue data collections on civilians without legal warrants. Consequently, even though the programs are being reevaluated and made subject to new regulations, most of them are still classified and the public has no way of knowing on what scale the changes are being made. The existing policy does not define or affect the data collection but only states that the collected data can only be used in criminal courts. These programs are arguably still in violation of the constitution and with the rapid advancement of surveillance technology, will only pose more challenges. 

Another consequence of Snowden’s whistleblowing was the refinement of leaking classified information and documents. Before the existence of the internet, the information did not spread as fast and if leaks occurred they were published in the public press. In Snowden’s case, even though the first receivers of the documents were news publications, the information spread rapidly through the internet. Consequently, the NSA surveillance programs and various cyber weapons that the government uses and develops are highly classified. When information on either appears in the press, the government needs to decide whether to attempt to prevent the press from publishing it by issuing a prior restraint. During the Trump Administration, the New York Times was working on an investigative report on the cyberweapons the US used against North Korea’s nuclear missile programs. [9] When the news reached the White House, the New York Times received a letter from the White House Counsel, Donald McGahn, warning the press that the article “will compromise and/or otherwise negatively impact the national security of the United States.” [10] Because of the wording of the letter, the lawyers of the New York Times expressed concern over whether the White House was planning on using the Espionage Act to prosecute reporters for publishing classified information. [11]

Even though the free press has feared that the Espionage Act would be used against them since the day it was passed, there have not recently been any prosecutions under it. [12] However, with technological advancement and cyberspace and cyberweapons becoming more and more prominent, more information is available and accessible. As the press published information about these advancements the government will have to worry about the access the adversaries of the US might have to it. Therefore, after a century the use of the Espionage Act to prosecute reporters might become a reality. As international and domestic affairs become more and more involved in cyberspace and cybersecurity, the laws governing them will have to adjust as well. However, since most of the information on these matters is classified, effective changes in legislation and policies are more challenging. The public has no way of knowing what changes are taking place and whether the issues brought to light by whistleblowers like Snowden are being addressed. In the end, they have to rely on the trust that the government will act in the best interest of the public and that the state secret law, while classified, will  be conceived with regard to our national interest in protecting civil liberties.

by Lika Gegenava

Roundtable edited by Artem Ilyanok

Sources for Section 1:

[1] Spencer, Thomas R., and F.W. Rustmann. “The History of State Secrets.” Thomas R. Spencer, P.A. Accessed November 14, 2021. https://www.spencerpa.com/firm-info/articles/the-history-of-state-secrets/.

[2] “Introduction of the State Secrets Protection Act (S. 2533).” Accessed December 5, 2021. https://irp.fas.org/congress/2008_cr/statesec.html. 

[3] “United States v. Reynolds | Oyez.” Accessed November 14, 2021. https://www.oyez.org/cases/1940-1955/345us1?_escaped_fragment_=&_escaped_fragment_=. 

[4] Snyder, Warren E. “Leaks and Their Consequences: A Guide to the Controversy Over Secrecy vs. Open Government.” American Intelligence Journal 32, no. 2 (2015): 13–16. https://doi.org/https://www.jstor.org/stable/26202131?seq=1#metadata_info_tab_contents.

[5] “State Secret Protection Act of 2009 - FAS.” Accessed November 14, 2021. https://sgp.fas.org/congress/2009/statesec.pdf.

Sources for Section 2:

[1] NOLO Legal Encyclopedia. “What is Treason” Accessed 11 Nov, 2021. https://www.criminaldefenselawyer.com/resources/treason.htm  

[2] Crane, Paul T. and Pearlstein Deborah. 2021. “Treason Clause.” The National Constitution Center. https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/39. 

[3] Britannica, T. Editors of Encyclopaedia. "treason." Encyclopedia Britannica, July 13, 2016. https://www.britannica.com/topic/treason. (Britannica 2016)

https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/39

[4] “United States v. Adam Gadahn｜United States Justice Department” Accessed 14 Nov, 2021. 

https://www.justice.gov/archive/ll/highlights.htm 

[5] United States Office of Information Policy. "What is FOIA?" Freedom of Information Act, United States Government, www.foia.gov/about.html. 

[6] Id

[7] Asp, David and Deborah Fisher, “Espionage Act of 1917,” The First Amendment Encyclopedia,  (2019), online at https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917 (visited November 20, 2021)

[8] Wittes, Benjamin, Problems with the Espionage Act, Lawfare Publication (2010), online at https://www.lawfareblog.com/problems-espionage-act (visited November 29, 2021)

Sources for Section 3:

[1] Nick Schwellenbach and Sean Moulton, The “Most Abused” Freedom of Information Act Exemption Still Needs to Be Reined In, Project on Government Oversight (2020), online at https://www.pogo.org/analysis/2020/02/the-most-abused-foia-exemption-still-needs-to-be-reined-in/. 

[2] Ryley Graham, What is the ‘deliberative process’ privilege? And why is it used so often to deny FOIA requests?, Reporters Committee for Freedom of the Press (2020), online at https://www.rcfp.org/foia-deliberative-process/. 

[3] Nick Schwellenbach and Sean Moulton, The “Most Abused” Freedom of Information Act Exemption Still Needs to Be Reined In, Project on Government Oversight (2020), online at https://www.pogo.org/analysis/2020/02/the-most-abused-foia-exemption-still-needs-to-be-reined-in/.

[4] Eric Schewe, America’s State Secrets and the Freedom of Information Act, JStor Daily (2017), online at https://daily.jstor.org/americas-state-secrets-freedom-information-act/.

[5] Dale Mineshima-Lowe, USA Patriot Act of 2001, The First Amendment Encyclopedia (2019), online at https://www.mtsu.edu/first-amendment/article/1096/usa-patriot-act-of-2001.

[6] Rohini Kurup, Supreme Court to Hear State Secrets, Lawfare Blog (2021), online at https://www.lawfareblog.com/supreme-court-hear-state-secrets-case-fbi-surveillance.

[7] United States v. Zubaydah, Oyez, online at https://www.oyez.org/cases/2021/20-827 (visited November 26, 2021). 

Sources for Section 4:

[1] Jacquelyn Bulao, “How Fast is Technology Advancing in 2021?” TechJury, (2021)

[2] Theo Dyssean, “What is a Combatant Command?” Sandboxx, (2020)

[3] James Chen, “USA Patriot Act,” Investopedia, (2021)

[4] American Civil Liberties Union v. National Security Agency (ACLU v. NSA), United States District Court: Eastern District of Michigan (Southern Division), (2007)

[5] Id

[6] History Editors, “Edward Snowden Discloses US Government Operations,” History, (2020)

[7] Sarah Childress, “How the How the NSA Spying Programs Have Changed Since Snowden,” FrontLine, (2015)

[8] Id

[9] David E. Sanger, “Covering the Cyberwars,” National Security, Leaks, and the Freedom of the Press, (2021)

[10] Id

[11] Id

[12] Id