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07/21/2020

Judge Patrick Bumatay on the State Secrets Doctrine
Michael Ramsey

In a recent case, Fagaza v. Walls, Judge Patrick Bumatay (Ninth Circuit) (writing for 10 judges dissenting from denial of rehearing en banc), discusses the historical foundations of the state secrets doctrine.  An excerpt (footnotes omitted): 

Article II of the Constitution commands that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. And the President is also designated as the “Commander in Chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2. By these terms, the Constitution was originally understood to vest the President with broad authority to protect our national security. See Hamdi v. Rumsfeld,  42 U.S. 507, 580 (2004) (Thomas, J., dissenting) (“The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.”). As Hamilton observed, a single Executive could better act with “[d]ecision, activity, secrecy, and d[i]spatch” as would be required to respond to the national security crises of the day. The Federalist No. 70 (Alexander Hamilton).

Secrecy, at least at times, is a necessary concomitant of the executive power and command of the Nation’s military. As commander of the Continental Army, George Washington explained to Patrick Henry that “naturally . . . there are some Secrets, on the keeping of which so, depends, oftentimes, the salvation of an Army: Secrets which cannot, at least ought not to, be [e]ntrusted to paper; nay, which none but the Commander in Chief at the time, should be acquainted with.”

Given the Executive’s inherent need for secrecy, it comes as no surprise that early presidents regularly asserted a privilege over the disclosure of sensitive information. In 1792, when President Washington found himself faced with the first-ever congressional request for presidential materials, he recognized an executive privilege to avoid disclosure of secret material. See Abraham D. Sofaer, Executive Power and the Control of Information: Practice Under the Framers, 1977 Duke L.J. 1, 5–6. Washington’s Cabinet, including Hamilton and Jefferson, agreed “that the executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.” Id. at 6 (quoting The Complete Jefferson 1222 (S. Padover ed. 1943)); see also Mark J. Rozell, Restoring Balance to the Debate over Executive Privilege: AResponse to Berger, 8 Wm. & Mary Bill Rts. J. 541, 556 (2000).

President Jefferson, even as a prominent critic of an overly strong executive branch, held the same view on the need for secrecy. As he put it in 1807, “[a]ll nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication.” Similarly, Jefferson wrote to the prosecutor of the Aaron Burr case to explain that it was “the necessary right of the President . . . to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom.”

The issue in the case isn't the existence of the state secrets doctrine, but rather the extent to which it is qualified by the Foreign Intelligence Surveillance Act (FISA); the dissent stresses the doctrine's strong constitutional foundations as a ground for reading the FISA provisions narrowly.

(Via Ed Whelan at NRO Bench Memos.)