IN THE NAME OF NATIONAL SECURITY

Vol. 16 No. 12 (December 2006) pp.955-956

IN THE NAME OF NATIONAL SECURITY: UNCHECKED PRESIDENTIAL POWER AND THE REYNOLDS CASE, by Louis Fisher. Lawrence: University Press of Kansas, 2006. 256pp. Cloth. $34.95. ISBN: 0700614648.

Reviewed by Daniel Hoffman, Johnson C. Smith University. E-mail: dhoffman [at] jcsu.edu.

The eminent constitutional scholar, Louis Fisher, has written a book-length account of US v.REYNOLDS (1953). REYNOLDS has long been the government’s favorite authority on the so-called state secrets privilege. Relying partly on newly discovered facts, Fisher demonstrates that the government’s argument totally misled the Supreme Court as to what was at stake in the litigation. He argues further that the Court’s reasoning was in any case deeply flawed, and that the decision has provided unwarranted support for claims of unchecked presidential power.

Chapter One gives factual and statutory context to the lawsuit, which was brought under the Tort Claims Act by the widows of men killed in a military plane crash. The plane carried secret electronic equipment, and the government refused to disclose its accident report to plaintiffs, their counsel, or the court.

Chapters Two through Four recount the strategy decisions, filings, arguments and rulings in the District Court, Circuit Court and Supreme Court, respectively. While plaintiffs prevailed in the lower courts, the Supreme Court reversed in a 6-3 decision, holding that when presented with a plausible state secrets claim, “the court should not jeopardize the security which the [state secrets] privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” As Fisher points out, this McCarthy-era ruling gave extraordinary deference to executive claims, while at the same time insinuating that federal judges cannot be trusted to protect secret information.

Chapter Five describes subsequent developments, such as the Freedom of Information Act, that make out a broad trend toward increasing transparency and limitations on executive discretion to withhold. These steps, however, have not squarely addressed the specific problems created by the REYNOLDS decision.

Chapter Six relates the recent discovery that the accident report at issue in REYNOLDS had been declassified. It became clear the withheld documents contained no information at all about the secret equipment or the purpose of the flight. They simply detailed the government negligence responsible for the accident. At this point plaintiffs returned to court, seeking to reopen the litigation. Their effort was frustrated by the value usually placed on finality of decisions after the normal appeal process is exhausted.

Finally, Chapter Seven places REYNOLDS in historical context. Fisher argues that the precedents relied on by the government and the Court in [*956] REYNOLDS did not really support the outcome in that case. Thus, the discrediting of REYNOLDS leaves the state secrets privilege with no judicial grounding at all. Courts should not defer to executive claims of privilege without reviewing the evidence, in camera if necessary, and determining independently whether disclosure is appropriate. Moreover, if the claim is upheld, the government must bear the consequences: the court will proceed as if the withheld information were unfavorable to the government’s case.

I have no quarrel with Fisher’s argument that REYNOLDS is bad law. Indeed, one could reach that conclusion simply from reading Chief Justice Vinson’s puzzling opinion, along with the fact that Justices Black, Frankfurter and Jackson all dissented, though without writing. No like-minded trio, those three. Hopefully, Fisher’s showing that the government essentially deceived the Court in order to mount a test case for the state secrets privilege will incline some of those enchanted by the shibboleth of “national security” to rethink their tendency to grant blind faith to executive claims.

Fisher’s critique of REYNOLDS is a useful addition to the body of literature, such as David Adler’s work on CURTISS-WRIGHT, exposing the utterly infirm foundations of the doctrine of inherent presidential powers.

While Fisher’s rhetoric is sometimes passionate, his legal arguments are profoundly learned and thoroughly documented. One might quibble about the placement of Chapters Five and Seven, and some may find redundant the many repetitions of the fundamental point – that courts cannot perform their core checking and balancing function without independently reviewing the evidence on which the government relies. Still, the point is very much worth making, especially in light of current circumstances.

REFERENCES:

Adler, David Gray. 1996. “Court, Constitution, and Foreign Affairs.” In David Gray Adler and Larry N. George (eds). THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY. Lawrence: University Press of Kansas.

Hoffman, Daniel N. 1997. “The Myth Of Presidential Prerogative.” In Daniel N. Hoffman. OUR ELUSIVE CONSTITUTION: SILENCES, PARADOXES, PRIORITIES. Albany: State University of New York Press.

CASE REFERENCES:

UNITED STATES v. CURTISS-WRIGHT CORP., 299 U.S. 304 (1936).

UNITED STATES v. REYNOLDS, 345 U.S. 1 (1953).

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