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the Court cmphasized, 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."'116

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 thc food of major matters that vie for the consideration of the head of a department must constrain him to thrust aside such relatively unimportant calls.416 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 Juncks 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 bearing the accused, is disapproved.”

116 345 U.S. at 7-8.

416 Sce discussion at notes 539-44 infra; McCORMICK, EVIDENCE 307 (1954); 8 WIGNORE $ 2378, at 793.

After calling attention to a particularly harsh refusal to exercise the Attorney General's discrction to release a dcportable alicn on bond bccausc a "very subordinate official ... (not thc Allorncy Gencral himself) said that Zydok's (thc alicn) dossier showed involvement with the Communists" though "there was no disclosed cvidence of subversivc activitics," GELLUIORN & BYSE 819-20, point out that "lhc Attorncy General's judgment is rarely brought to bear on thcsc matters, or, indeed, on any other individual cascs in thc deportation process." This was confirmed by Mr. Justicc Black in Jay v. Boyd, 351 U.S. 345, 366 (1956) (dissenting opinion): "The Court conccdcs ... that the Altorncy Gcncral docs not personally exercise discrction in these cascs. Therefore, the 'uníctlcrcd discrction' . . . is the unscttcrcd 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 addcd.) If this could be true of so important a matter as a formal opinion of the Attorney General to a department hcad, why should morc 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. Rcynolds, 345 U.S. 1, 12 (1953). The sweeping effect given in England to a ministerial represcntation 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 scarching 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 privilcge were being too widely asserted.” Id. at 155. Scc text accompanying note 400 supra.




about pcrmitting the courts to screen administrative claims of the nccd for secrecy. Wigmore justifiably askcd, "is it to be said that cven this much of disclosurc (in camera] cannot be trusted? Shall cvery subordinate in the department have access to the secret, and not the presiding officer of justicc?” To Icave 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 arc cxtensiblc bcyond 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 privilegc.418 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.410

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 subordinatc" has access to military sccrcls, but subordinates undeniably do handle them and consult tiers of superiors. This has rcccived judicial recognition. Matters of "rarest sccrccy" must often bc duplicated by subordinates and thus becomc “known to one or more stenographers or filc 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 Sccrctary cannot himself kccp "statc sccrets" under lock and kcy. And occasionally, as wc Icarn from time to time, subordinates Icak such secrets to hostile nations. Morcover, today, "hundreds of thousands of civilians arc engaged in secret activities of the grcatest military importance, whether at military laboratorics 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. Sce text accompanying notes 23839 supra.

119 “The rationale of the criminal cascs is that, since the Government which prosccutes 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 rationalc 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 cascs" 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 defcndant. 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.

120 92 U.S. 105 (1875).
421 Id. at 107. (Emphasis added.)



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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

A post-Rcynolds case that underscores the need for judicial scrutiny of privilege claims for military secrets is Halpern v. United Statcs.123 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
secrets, like its similar privilege to withhold the identity of confidential
informants, 'is limited by its underlying purpose. ...[T]he privilege
relating to state secrets is inapplicable when disclosure to court person-
nel in an in camera procccding will not make the information public

or endanger the national security. 126 The court's practical suggestions for dealing with the in camera trial“28 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

122 Halpern v. United States, 258 F.2d 36, 44 (2d Cir. 1958).
123 Ibid.
424 Sce Coke's comment on the "state secret" defense, note 385 su pre.

426 258 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 screts," id. at 435, but it would appear that the court regarded the risk as negligible. Cf. note 426 infra.

420 "It should not be disficult to obtain a court reporter and other essential court personnel with the necessary sccurity clearancc. Il 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.

127 8 WIGMORE $ 2378, at 785 n.6 (3d ed. 1940), citing United States v. Burr, 25




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 Ictter is more question-
abic. It is alleged that it most probably communicates orders showing
the situation of this country with Spain. ...If it contain matter not
essential to thc defence, and the disclosure be unpleasant to the cxecu-
tive, 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. 30 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 security 431 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., 432 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
organ for foreign affairs, has available intelligence services whose
reports are not and ought not to be published to the world. It would

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 forcign encmics," and even here he insists that courts should determine whether secrecy is necessary. 8 WICMORE 789, 799.

128 25 Fcd. Cas. at 37. (Emphasis added.)

429 See note 333 supro. Marshall's subsequent opinion was confined to General Wilkinson's Ictter. 25 Fed. Cas. at 190-93.

For a turn-over of "confidential information" by Washington, cven with respect to pending negotiations, sce tcxt accompanying notes 240-47 supro.

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).



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bc intolerable that the courts, without the relevant information, should revicw and perhaps nullify actions of the Executive taken on

information properly held secrct.488 Presumably this pronouncement would not shicked such informarion in a criminal casc under Unilci Slalos v. Jcucks, 914 and United Slulrs . krynolds."*" Liven in a civil casc thc l'resident's role as Commander-in-Chief does not under tlic Reynolds casc afford "military secrets" an absoluto shicld from disclosurc. 4:10 It is difficult to conceive of any matter touching forcign relations which today requires greater sccrccy than thc Polaris missilc or nuclcar 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 helpsul to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way."438

4:33 Quoted 254 F.2d at 75.
434 353 U.S. 657 (1957).
135 Scc note 419 supra.
430 Scc note 412 supra.

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 bctwcen the American and British representatives” because it "would be prejudicial to the forcign relations." Id. at 553. The court said: “Here, as in the Reynolds case, the nccessity for disclosure of the information requested is dubious and the reason for sustaining the claim of privilcgc is clcar." Id. at 557.

137 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 whosc 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 Walerman as an example of "wide definition of presidential powers under statutory authorization"; thc carlier 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 wbat is asked is useful evidence

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