Common Law Government Secrets Privilege

Common Law Government Secrets Privilege

Common Law Government Secrets Privilege

  1. militarydefenselawyers277Nature of the Privilege. An absolute privilege to prohibit the disclosure of information pertaining to military or diplomatic secrets. The Supreme Court discussed the privilege in United States v. Reynolds, 345 U.S. 1 (1952). In Reynolds, an Air Force B-29 bomber on a mission to test secret electronic equipment caught on fire and crashed. Widows of three of the deceased brought
    suit against the United States and moved for discovery of the official accident investigation. The Secretary of the Air Force claimed privilege. The Supreme Court recognized a common law privilege protecting military and state secrets. Id. at 7-8. This is different from the so-called “executive privilege,” a qualified privilege pertaining to the deliberative processes of the executive branch. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court held that the President does not have an absolute unqualified privilege in a criminal case to
    protect tape recordings and documents from disclosure. In Cheney v. United
    States District Court for the District of Columbia, 124 S.Ct. 2576 (2004), the
    Supreme Court held that the D.C. Circuit Court of Appeals read Nixon too
    broadly in requiring the Vice President to make a claim of executive privilege
    with specificity in a civil case.
  2. Claiming the Privilege. The privilege must be claimed formally by the head of a
    department after personal consideration by that officer. It cannot be claimed or
    waived by a private party. Reynolds, 345 U.S. at 8-9. There is no privilege until
    a formal claim of privilege has been made.