1296 UCLA LAW REVIEW [Vol. 12: 1287 the Court emphasized, privilege "is not to be lightly invoked.. [the claim must be] lodged by the head of the department . . . after actual personal consideration by that officer."416 Presumably the department head's consideration was meant as a substitute for judicial scrutiny in critical arcas; but reliance upon "actual personal consideration" by the Secretary of the Army of the various calls for information by private litigants is unrealistic. It is generally agreed that the flood of major matters that vie for the consideration of the head of a department must constrain him to thrust aside such relatively unimportant calls.110 Then too, as Judge Maris stated for the court below, there is no danger to the public interest in submitting the question of privilege to the decision of the courts. The judges . . . are public officers whose responsibility under the Constitution is just as great as that of the heads of the executive departments.417 No branch has enjoyed greater confidence of the American people than the judiciary and it is singular that there should be any qualms divulged to the court. Note that in Jencks v. United States, 353 U.S. 657, 669 (1957), a criminal case, the Court said that "the practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved." 416 345 U.S. at 7-8. 416 See discussion at notes 539-44 infra; McCORMICK, EVIDENCE 307 (1954); 8 WIGMORE 2378, at 793. After calling attention to a particularly harsh refusal to exercise the Attorney General's discretion to release a deportable alien on bond because a "very subordinate official . . . (not the Attorney General himself) said that Zydok's [the alien] dossier showed involvement with the Communists" though "there was no disclosed evidence of subversive activities," GELLIIORN & BYSE 819-20, point out that "the Attorney General's judgment is rarely brought to bear on these matters, or, indeed, on any other individual cases in the deportation process." This was confirmed by Mr. Justice Black in Jay v. Boyd, 351 U.S. 345, 366 (1956) (dissenting opinion): "The Court concedes . . . that the Attorney General does not personally exercise discretion in these cases. Therefore, the 'unfettered discretion'... is the unfettered discretion of inquiry officers . . . ." Mr. Justice Jackson, concurring in McGrath v. Kristensen, 340 U.S. 162, 176 (1950), rejected a "foggy" opinion of the Attorney General rendered by him to Secretary of War Stimson, saying that "it would be charitable to assume" that "the nominal author of the Opinion [did not] read it." Id. at 163. (Emphasis added.) If this could be true of so important a matter as a formal opinion of the Attorney General to a department head, why should more be expected when the issue is whether to make documentary disclosure in a civil litigation? 417 Reynolds v. United States, 192 F.2d 987, 997 (3d Cir. 1951). Judge Maris' views were adopted by the dissenters, Black, Frankfurter and Jackson, JJ., in United States v. Reynolds, 345 U.S. 1, 12 (1953). The sweeping effect given in England to a ministerial representation that disclosure in a private litigation will injure the national interest, Duncan v. Cammell Laird & Co. [1942] A.C. 624, has been rejected by the highest courts of Canada and New Zealand, and subjected to searching criticism. See Note, The Authority of Duncan v. Cammell Laird & Co., 79 L.Q. Rev. 153 (1963) (A. L. Goodhart), which also notes judicial expressions of "concern lest claims of privilege were being too widely asserted." Id. at 155. See text accompanying note 400 supra. 1965] WITHHOLDING INFORMATION 1297 about permitting the courts to screen administrative claims of the need for secrecy. Wigmore justifiably asked, "is it to be said that even this much of disclosure [in camera] cannot be trusted? Shall every subordinate in the department have access to the secret, and not the presiding officer of justice?" To leave the final determination in bureaucratic hands, he continues, is to furnish to governmental officials too ample opportunities for abusing the privilege. The lawful limits. of the privilege are extensible beyond any control, if its applicability is left to the determination of the very official whose interest it may be to shield a wrongdoing under the privilege.118 Wigmore's forebodings were abundantly fulfilled by the executive branch under the 1954 Eisenhower directive to withhold information from Congress. It should be borne in mind that Reynolds is confined to civil cases' in which the government defends; the requirement of disclosure in criminal cases is recognized.* 419 Totten v. United States,120 the post-Civil War case where suit was brought for espionage services under a secret contract between the spy and President Lincoln, is sometimes cited mistakenly for executive privilege. The Court said that the "existence of a contract of that kind is itself not to be disclosed,"421 meaning that an implicit 418 8 WIGMORE § 2389, at 799 (3d ed. 1940). Not "every subordinate" has access to military secrets, but subordinates undeniably do handle them and consult tiers of superiors. This has received judicial recognition. Matters of "rarest secrecy" must often be duplicated by subordinates and thus become "known to one or more stenographers or file clerks or photographers or other craftsmen and likely as not to others." United States v. Certain Parcels of Land, 15 F.R.D. 224, 232 (S.D. Cal. 1954). Obviously the Secretary cannot himself keep "state secrets" under lock and key. And occasionally, as we learn from time to time, subordinates leak such secrets to hostile nations. Morcover, today, "hundreds of thousands of civilians are engaged in secret activities of the greatest military importance, whether at military laboratories such as Fort Monmouth or civilian agencies like the Atomic Energy Commission . . . [not to mention the numerous subcontractors] TAYLOR 107. Compare Judge Wyzanski's remarks, note 381 supra; and the claim of secrecy made against the House for papers that could be seen in the Senate. See text accompanying notes 23839 supra. 419 "The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privilege to deprive the accused of anything which might be material to his defense. Such rationale has no application in a civil forum where the Government is not the moving party, but is a defendant only on the terms to which it has consented." United States v. Reynolds, 345 U.S. 1, 12 (1953). And "the rationale of the criminal cases" is no less applicable to civil suits brought by the government. Apparently the Court overlooked the impact of the Federal Rules of Civil Procedure on the government as defendant. Once there has been "consent" to suit, the government is as much bound by the Rules as a private litigant, including the discovery provisions, which are applicable to both plaintiffs and defendants. Berger & Krash 1451, 1454-55. 420 92 U.S. 105 (1875). 421 Id. at 107. (Emphasis added.) 1298 UCLA LAW REVIEW [Vol. 12: 1287 term of the contract was nondisclosure of its existence. Thus the opinion turned primarily "on the breach of contract which the Court found occurred by the very bringing of the action."422 423 A post-Reynolds case that underscores the need for judicial scrutiny of privilege claims for military secrets is Halpern v. United States. The statute authorized withholding of a patent if the government believed secrecy was required in the national interest but afforded a right to compensation. In 1941, Halpern disclosed to the government a discovery with important military implications whereby "an object may escape observation or detection by radar." This was reduced to practice and improved, and Halpern filed a patent application. His patent was withheld, though deemed otherwise allowable, because as late as 1956 the Commissioner of Patents found secrecy essential. Compensation was denied by the administrators whereupon Halpern filed suit and was met among other things by a plea of privilege for "state secrets."424 Recovery for the secret he himself had divulged was opposed because the secret had to be preserved! The Second Circuit rejected this claim saying, first, that there could be a trial in camera and, second, that the scope of the privilege of the United States with respect to state The court's practical suggestions for dealing with the in camera trial constitute a refreshing departure from the hypnotic incantation of "state secrets." (b) Foreign Affairs Secrets. There is no more reason to conclude that the privilege for "foreign affairs" is absolute than in the case of "military secrets". Wigmore cites United States v. Burr for "recognition of privilege" for correspondence which "might have involved international relations with Spain and France."427 At an 422 Halpern v. United States, 258 F.2d 36, 44 (2d Cir. 1958). 424 Sce Coke's comment on the "state secret" defense, note 385 supra. 425 258 F.2d at 44. The court stated that a trial in camera should be had if it "can be held without running any serious risk of divulgence of military secrets," id. at 435, but it would appear that the court regarded the risk as negligible. Cf. note 426 infra. 420 "It should not be difficult to obtain a court reporter and other essential court personnel with the necessary security clearance. If necessary, the stenographers who are now writing letters concerning this invention [and often handling and filing the "secrets"] for the Department of the Navy can be utilized to record the testimony." 258 F.2d at 43. 427 8 WIGMORE § 2378, at 785 n.6 (3d ed. 1940), citing United States v. Burr, 25 1965] WITHHOLDING INFORMATION 1299 early stage of the proceeding Chief Justice Marshall, referring to an answer to General Wilkinson's letter, said the propriety of requiring the answer to this letter is more questionable. It is alleged that it most probably communicates orders showing the situation of this country with Spain. . . . If it contain matter not essential to the defence, and the disclosure be unpleasant to the executive, it certainly ought not to be disclosed. This is a point which will appear on the return.428 No further mention of this letter is made, and from the government attorney's later statement to the court that "when we receive General Wilkinson's letter, the return will be complete," it may be inferred that this answer was not withheld.129 A recent case, Dayton v. Dulles, did however declare that withholding was permissible where disclosure would adversely affect our internal security or the conduct of our foreign affairs. The cases and common sense hold that the courts cannot compel the Secretary to disclose information garnered by him in confidence in this area.430 Plaintiff sought a passport to India in order to accept a position as research physicist at the University of Bombay. The Secretary of State denied the passport on the basis of confidential information that plaintiff had been a member of the Rosenberg ring and was going abroad to advance the Communist cause. He stated in the course of the trial that it would be detrimental to internal security431 and to our foreign relations to disclose the source of his information. In affirming the denial, Judge Prettyman relied on Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp.,132 which held that an order of the President approving an order of the Civil Aeronautics Board which denied an overseas route was unreviewable. He quoted a statement by Mr. Justice Jackson that: The President, both as Commander-in-Chief and as the Nation's Fed. Cas. 30 (No. 14692d) (C.C.D. Va. 1807). But note that Wigmore concedes the necessity for secrecy only "for acts of pending international negotiations or military precautions against foreign enemies," and even here he insists that courts should determine whether secrecy is necessary. 8 WIGMORE 789, 799. 428 25 Fcd. Cas. at 37. (Emphasis added.) 429 See note 333 supra. Marshall's subsequent opinion was confined to General Wilkinson's letter. 25 Fed. Cas. at 190-93. For a turn-over of "confidential information" by Washington, even with respect to pending negotiations, see text accompanying notes 240-47 supra. 430 254 F.2d 71, 77 (D.C. Cir.), rev'd, 357 U.S. 144 (1958), on the ground that the action was not authorized cither by Congress or the President. 431 254 F.2d at 72-74. 432 333 U.S. 103, 111 (1948). 1300 UCLA LAW REVIEW [Vol. 12: 1287 be intolerable that the courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.438 Presumably this pronouncement would not shield such information in a criminal case under United States v. Jencks, and United States v. Reynolds, 4 Even in a civil case the President's role as Commander-in-Chief does not under the Reynolds case afford "military secrets" an absolute shield from disclosure. It is difficult to conceive of any matter touching foreign relations which today requires greater secrecy than the Polaris missile or nuclear armament programs, the secrecy of which is being preserved even at the cost of impaired "foreign relations" with General De Gaulle.437 Yet even as to these a court must be satisfied that disclosure will threaten the national security. 2. Informers The "informer's privilege" is in reality the government's privilege to withhold the identity of informers in order to encourage them to communicate information of law violations to enforcement officers. But it is not an immutable privilege: "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.' 433 Quoted 254 F.2d at 75. 434 353 U.S. 657 (1957). 435 See note 419 supra. 430 See note 412 supra. 97438 In Republic of China v. National Union Fire Ins. Co., 142 F. Supp. 551 (D. Md. 1956), the government refused to "supply any memoranda of certain conversations between the American and British representatives" because it "would be prejudicial to the foreign relations." Id. at 553. The court said: "Here, as in the Reynolds case, the necessity for disclosure of the information requested is dubious and the reason for sustaining the claim of privilege is clear." Id. at 557. 437 The effect of Dayton v. Dulles needs to be considered further in light of Greene v. McElroy, 360 U.S. 474 (1959), which is hereafter discussed. Mr. Justice Jackson, upon whose opinion in the Waterman case Judge Prettyman strongly relies, said in a later case in which the government claimed that "security" required the withholding of "confidential information," that "security is like liberty in that many are the crimes committed in its name." United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (1950) (dissenting; Black and Frankfurter JJ., concurred.) Whatever the impact of Waterman on "evidentiary privilege," a statute requiring disclosure to Congress would stand on a different footing. Mr. Justice Jackson himself regarded Waterman as an example of "wide definition of presidential powers under statutory authorization"; the earlier Curtiss-Wright, he said, did not intimate that the President "might act contrary to an Act of Congress." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-36 n.2 (1952) (concurring opinion). 438 Roviaro v. United States, 353 U.S. 53, 60-61 (1957). Earlier it had been held that the informer's privilege must.give way: "If what is asked is useful evidence 68-287 O 71 10 |