From the Civil War to the war on terror: the evolution and application of the state secrets privilege.

I. INTRODUCTION

On a warm July day in 1861, a Union spy named William Lloyd received secret orders from President Lincoln to infiltrate the southern states on a mission to ascertain Confederate troop positions, the plans of major fortifications, and other information which would be of benefit to the United States government. (1) For his services he was to be paid $200 a month, with his findings to be reported directly to the President. (2) One hundred and forty years later in the aftermath of September 11, President Bush would authorize the National Security Agency to conduct warrantless communications surveillance on persons with alleged ties to Al Qaeda and other terrorist organizations. (3) Though the circumstances of these two actions are decidedly different, their clandestine natures both invoke the issue of state secrets and the question of how courts are to proceed when the subject of litigation is a matter of national security. Given the current geopolitical climate and the advancing sophistication of intelligence gathering, an analysis of the state secrets privilege and its practical implications is increasingly relevant.

II. THE BEGINNINGS OF THE STATE SECRETS PRIVILEGE IN AMERICAN LAW

Although it would take some time for the state secrets privilege to develop its current scope and power, the case of Totten v. United States (4) marks the first general instance of its use in American jurisprudence. (5) As highlighted before, this case concerned a secret espionage agreement allegedly entered into between President Lincoln and William Lloyd during the Civil War. (6) Upon hearing the matter originally, the Court of Claims found that Lloyd did venture behind enemy lines where he remained for the duration of the war, and that over the course of his stay he transmitted information back to the President as directed under his contract, but that after the war's end he was only reimbursed for expenses. (7) Lloyd subsequently died and Mr. Enoch Totten brought suit on his estate's behalf to recover the compensation allegedly owed under the secret contract. (8)

In affirming the Court of Claims' dismissal of the action, the Supreme Court recognized the power of the President to enter into such contracts, but expressed its concern with the dangers litigation of its contents might bring. (9) Writing for the Court, Justice Field held:

 
   Our objection is not to the contract, but to the action upon it 
   in the Court of Claims. The service stipulated by the 
   contract was a secret service; the information sought was to 
   be obtained clandestinely, and was to be communicated 
   privately; the employment and the service were to be equally 
   concealed.... This condition of the engagement was implied 
   from the nature of the employment, and is implied in all 
   secret employments of the government in time of war, or 
   upon matters affecting our foreign relations, where a 
   disclosure of the service might compromise or embarrass our 
   government in its public duties, or endanger the person or 
   injure the character of the agent. If upon contracts of such a 
   nature an action against the government could be 
   maintained in the Court of Claims, whenever an agent 
   should deem himself entitled to greater or different 
   compensation than that awarded to him, the whole service in 
   any case, and the manner of its discharge, with the details of 
   dealings with individuals and officers, might be exposed, to 
   the serious detriment of the public. (10) 

The Court then ruled that