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ment in the interest of security. 886 And if Parliament was momentarily thwarted by George II, the Continental Congress adopted Pitt's vicw and cxpressly provided for legislative access to all papers in the Department of Foreign Affairs, even those of a "secret nature."380 Washington's Message respecting the Jay Treaty, after stressing the occasional need for secrecy in "forcign negotiations,” concluded that this was the reason for confining such information "to a small number of members" (i.c., to the Senate) through the mcdium of the advice and consent clause. Here was a treaty clamorously assailed by the public, and yet Washington felt constrained to put the "secret" information before the Senate, disclaiming any "disposition" (claim of privilege) to withhold any information that either House had a "right" to require.387 His turn-over to the Senate, while denying the "right" of the House to treaty information, constitutes recognition of the Senate's right to it. Vice-President Adams was of the opinion that the House too had a right to the information.388 This is scarcely stuff from which to fashion a wholesale claim of executive privilege. 389 Even for foreign negotiations "secrecy” may be too dearly bought; as that seasoned observer, Sir W. Ivor Jennings, noted:
Negotiations with foreign powers are difficult to conduct when a lynx.
... We are a free people because we can criticize freely.300
The "protection of the innocent," another of Mr. Younger's categories, was first assigned by Jefferson as a basis for withholding in the prosecution of Aaron Burr.301 One who studies Senator McCarthy's perversion of congressional investigations302 is likely to be sympathetic to Jefferson's prophetic assertion of the need to screen "rumors, conjectures, and suspicions” and his conclusion that
886 See text accompanying note 210 supra. Earlier Coke had said that: "reason of state is often a trick to put us out of the right way, for when a man can give no reason for a thing, then he flicth to a higher strain and saith it is a reason of state." Quoted in BOWEN 436.
386 Scc text accompanying notc 72 supra.
380 Thc scales are not turned by the several recent individual expressions in Congress to the cffcct that the President has a right to withhold information rcspecting foreign relations, Kramer & Marcuse 846, 902, for such remarks do not represent thc considered judgment of cither house and depart from the repeatedly reaffirmed earlier position to the contrary.
300 JENNINGS, THE BRITISH CONSTITUTION 82 (3rd ed. 1950). - 891 Att'y Gen. Memo. 6.
802 BARTI 40-66; TAYLOR 112-35.
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“neither safety nor justice will permit exposing of names."393 But here we are examining the historic basis of a claimed power; what is, not what ought to be. On this score the fact is that Jefferson's action was at war with his words, that he yielded to Marshall's subpocna and withheld nothing. Marshall lest no doubt that the President's judgment whether the public interest required withholding was not conclusive on a court in private litigation, and it nccds to be asked why it should be more binding on Congress.
From these roots, plus protection for "informers,” the argument for withholding "confidential” reports is derived.396 The claim of privilege for communications between subordinates and superiors or between subordinates themselves is of recent vintage, apparently first arising in 1954 out of President Eisenhower's recoil from the McCarthy inquiry into the Army.397 As a recent graft upon the privilege doctrine, this group is best examined against a backdrop of practicalities and evidentiary privilege in private litigation.308 At the same time we should be alert to what Professor Wade, an acute observer of the English administrative scene, calls the "civil servant's occupational love of secrecy,” the "official instinct of hiding as much as possible from the public gaze."3u1 He reports that:
303 Att'y Gen. Memo. 6. President Tyler remarked that “malignity may scck to make the executive department thc mcans of incalculablc and irremediable injury to innocent partics by throwing into them libcls most soul and atrocious.” Id. at 10.
394 Scc text accompanying notc 273 supra and note 577 infra. 306 See text accompanying notes 332-41 supra.
300 Ally Gen. Mcmo. 10, 22. President Hoover stated or onc category that, "if these matters cannot bc trcated confidentially by the representatives of the Government who obtain this information from manufacturers, producers and trades. mcn, then of course, we will never get the information." Quoted in Younger 766. But Congress as the lawmaker equally interested in law enforcement is entitled to determine whether this necd for confidential information riscs above its own nccds.
The "basic and seemingly irrefutable argument," say Kramer & Marcuse 912, is that of President Thcodore Rooscvelt: “'Some of these facts ... were given to the Government under the seal of secrecy ... and I will see to it that the word of The Government is kept sacred.'” Quoted in Att'y Gen. Memo. 17. But the Constitution did not cast the President in the role of Protector of the People against the Congress. On Roosevelt's theory, promises of confidential treatment to "informers" should be equally "sacred," yet that is not the case. See notes 438-442 infra.
307 President Eisenhower's directive of May 17, 1954, stated in part that "it is essential to efficient and cffective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, ... it is not in the public interest that any of their conversations and communications ... concerning such advice be disclosed. ..." Quoted in Kramer & Marcuse 683.
308 Scc text accompanying notes 491-52 infra.
300 WADE 16. Scc id. at 245. On Oct. 28, 1963, Senator Long of Missouri opened the hearings of a Scnate subcommittee on a proposed amendment to § 3 of the Administrative Procedure Act with the remark that "the tendency (of officialdom) toward secrecy must be checked now." Hearings 3. See note 491 infra.
Mr. Justice Devlin said that Crown privilcgc was becoming a scrious obstruction to justice, and both hc and the Court of Appeal were clearly convinced that privilege was being claimed for documents which could be made available without the least damage to the public intcrest. As we shall scc, this has now been officially admitted."
Such claims have been made by American officialdom cvcn against the Congress."'1 But in private litigation the bureaucracy has met with scant success.
B. Evidcntiary Privilege
Tyler's invocation of the evidentiary privilege analogy was immediately rebutted by a House committee on the ground, first, that disclosure to Congress did not necessarily result in the publication attendant upon disclosure in a judicial proceeding, and second, that although the public interest in withholding may rise above that of a particular litigant-Chief Justice Marshall held to the contrary in the Burr case—the need for investigation of "abuses in the administration itself” rises higher than the privilege lest that function be defcated.102 It would be anomalous to conclude that Congress
may compel executive disclosure in private litigation by consenting į to suit against the United States, 103 that it can waive the privilege
of withholding “state secrets” from such litigantsso and yet that it is powerless to protect the nation by requiring disclosure to itself. In reference to private litigation, the Supreme Court has said that “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers."406 Why should an executive determination be more conclusive against Congress when it requires information as a preliminary to legislation or appropriation? True, thus far the only sanction for nondisclosure in private litigation has been a choice between producing information or losing the action; the government has not actually been compelled to produce infor
400 WADE 243. "It has several times happened that cvidence for which the Crown at first claimed privilege has since been produced in court and shown to be quite innocuous. (This,] together with repcated judicial criticism of the Crown's use of its powers," id. at 245, led the government to adopt "a self-denying ordinance" making some types of reports availablc that had carlier been withhold. Ibid.
401 See text accompanying notes 496-530 injra.
402 Sec text accompanying notes 286-88 supra. Compare the statement by Assistant Attorney General Norbert A. Schlci bcíorc a Senate Subcommittee, supra note 6, at 198: “The situation in which an individual comes to an agency for particular information relating to a specific case oi rule-making íor adjudication may be very disserent from the situation where Congress, in the performance of its constitutionallyassigned functions, is investigating broad arcas of governmental activity."
403 Berger & Krash 1459.
10+ Halpern v. United States, 258 F.2d 36, 43 (2d Cir. 1958). 1906 United States v. Reynolds, 345 U.S. 1, 9-10 (1953).
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mation, 40because a party who obtains judgment has little need to press on for disclosure. When an administrator is faced with a choice between disclosure or defeat, particularly when the financial stakes are high, there will be few instances in which he will deem nondisclosure more important than victory. Were it established that Congress has a right to demand information from the executive branch, that the latter does not enjoy uncontrolled discretion to withhold such information, and that the courts are empowered to determine conflicting claims of power between Congress and the executive, judicial compulsion would be at hand to enforce the law in this as in many other situations where compulsion has been exercised against administrators and department heads.407
Before inquiring into the scope of executive privilege vis-à-vis the Congress, Ict us therefore turn with President Tyler to the cases in which claims of cxccutive privilege have been asserted in private litigation. The trcatment of cvidentiary privilege in those cases should illuminate the claimed privilege of nondisclosure to Congress, though it should be emphasized, as the House committee insisted in 1843, that other considerations cause the congressional right to disclosure to rise above the claims of private litigants. For present purposes, a rather cursory survey of the several categories of evidentiary privilege must suffice. 108
First, however, an enlightening glimpse of the state of English law in 1789. In an admiralty case involving a seizure by British authorities of lumber of American origin, the importation of which was forbidden by statute, the shipowner claimed that he had vainly sought to obtain a copy of an order of council (and of relevant docu. ments) which had suspended the statute. The court found it unnecessary to decide the issue, but said in passing that:
In any cause where the crown is a party, it is to be observed, that the crown can no more withhold evidence of documents in its possession, than a private person. If the court thinks proper to order the produc
tion of any public instrument, that order must be obeyed.109 The sanction for refusal to produce was that the recalcitrant "shall take nothing by his petition.” Such an "order of council,” issued in the prosecution of a hard-fought war comes close to being a "state secret;" yet the English court experienced no qualms and took mandatory disclosure for granted, thereby indicating that an absolute privilege for government documents was then judicially undreamed of.
400 Bishop 483.
408 For more extended discussion sce 8 WIGMORE $$_2374-79; Carrow; Hardin; Taubeneck & Sexton.
409 The Ship Columbus, i COLLECTANEA JURIDICA 88, 92, 121 (1789).
1. Sccrets of State-Military and Forcign Affairs
There are statements from which it might be inferred that in the arca of military and foreign affairs an absolute privilege of nondis. closure exists. 10 These statements, however, require reevaluation in light of recent developments.
(a) Military Secrets. The government's claim for protection of military secrets once led to summary rejection of a plca for disclosure."'1 But, the Supreme Court held in United States v. Reynolds, that such claims are not conclusive on the court, saying that "the court itself must determine whether the circumstances are appropriate for the claim of privilege."112 In that case the widows of civilian passengers on a crashed military plane which carried secret electronic equipment sought discovery of the Air Force's investigation report. Discovery was denied because plaintiff's had made "dubious showing of necessity” in light of an "available alternative."413 The Court also indicated that on occasion it may be possible to satisfy the court that "there is a reasonable danger that the compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged," in which case a court should not insist upon examination even in camera." But,
410 Dayton v. Dulles, 254 F.2d 71,'77 (D.C. Cir. 1957), rev'd on other grounds, 357 U.S. 144 (1958); 8 WICMORE § 2378, at 794.
411 Scc, c.6., Firth Sterling Steel Co. v. Bethlchem Stecl Co., 199 Fcd. 353 (E.D. Pa. 1912).
412 345 U.S. 1, 8 (1953). Such scrutiny is the more essential because, as a former General Counsel of the Army remarks, "there is not much information in thc ulcs of the State and Dclcnsc Departments
of a sort likely to attract congressional intcrcst-which could not with some plausibility be given a security classification, if the cxccutive wished lo withhold it on that ground (or on any ground).” Bishop 487.
413 345 U.S. at 11.
114 Id. at 10. This departs from the rule laid down by Marshall in the Burr case, sce text accompanying notc 340 supra. Although Burr was a criminal casc, Marshall considered that his rule reflected the rule in a civil case. Sec note 341 supra.
For criticism of the Reynolds casc sec Hardin 893-97. The major Aaw is that it lcaves the decision in borderline cases to the executive, which in practice means petty officials, sec notc 416 infra, who suffer from an occupational infatuation with secrecy, scc note 399, su pra, and accompanying text. Scc also Hardin 883.
For documentation that thc exccutive branch is uncooperativc, sce id. at 881-87. In the wake of the Reynolds case, “the executive continues to witbhold from court inspection much that could not be classed as military secrets,” id. at 896; and Professor Hardin slates that: “Without being unduly cynical, one can surmise that in many of the cases the information is really being withheld in order to gain advantage in the suit or to avoid official embarrassment or simply to avoid troublesome interruption of bureaucratic routine." Id. at 884. Except in the case of the giant corporation which can litigatc on cqual terms, officials can wear the average litigant down by resort to protracted litigation to determine whether the litigant is "entitled” to the information. Id. at 897.
Unsatisfactory as is the Reynolds formula, it yet makes cicar that the executive does not have the last word cxcept for the extraordinary case where the court itself is satisfied that national sccurity demands that information should not even be