SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 90
November 16, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

A CRITICAL LOOK AT NAVY V. EGAN

A 1988 U.S. Supreme Court decision known as Department of the Navy v. Egan has often been interpreted to support broad presidential authority over national security generally and over access to classified information in particular. Along with Curtiss-Wright, United States v. Reynolds, and a few other cases, Egan is regularly cited in support of strong, even unchecked executive authority and judicial deference to executive claims. It has become a cornerstone of national security law as practiced today.

But the case has often been misunderstood and misrepresented, according to a new study by Louis Fisher of the Law Library of Congress, who reviewed the development and interpretation of Egan in more than 180 judicial decisions.

The Egan decision was prompted by a narrow statutory dispute: Did the Merit Systems Protection Board (an executive branch body) have the authority to review the revocation of a security clearance by the Navy (another executive branch body)? The court concluded that Congress had not intended to permit such review.

But in reaching that straightforward conclusion, "various passages in Egan strayed from this central issue and created confusion and misconceptions" about the scope of executive authority and the role of the courts, wrote Dr. Fisher. Among such passages was a discussion of the President's constitutional powers culminating in the statement that "Unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."

Over time, Egan came to signify the notion that courts should grant the "utmost deference" -- or even absolute deference -- to the executive on issues of national security. Citing Egan, one court in 1993 held that "the presumption of reviewability is entirely inapplicable in matters concerning national security." This is an extreme view that would exclude the courts altogether from national security affairs. "Egan does not support that interpretation," wrote Fisher. But there it is.

In a 2002 report on leaks of classified information, Attorney General John Ashcroft cited Egan in support of the proposition that "The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret." These statements are true except for the implication that such authority is exclusively the province of the executive. The Attorney General conspicuously neglected to note the qualification in Egan which stated "Unless Congress has specifically provided otherwise...."

Recently, observed Fisher, some courts have presented a more nuanced reading of Egan. In proceedings such as Al-Haramain and Horn v. Huddle, courts have rebuffed executive arguments for complete deference in cases where Congress has legislated its intent into statute.

Fundamentally, Fisher concludes, "Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information." See "Judicial Interpretations of Egan" by Louis Fisher, Law Library of Congress, November 13, 2009:

Dr. Fisher will be the luncheon speaker at a day-long conference November 18 on "The State of the State Secrets Privilege" at American University Washington College of Law.

NEW PUBLICATIONS RECEIVED

A new law review article argues that government secrets can be usefully distinguished in terms of "depth"-- i.e. "how many people know of their existence, what sorts of people know, how much they know, and how soon they know.... Attending to the depth of state secrets can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal." See "Deep Secrecy" by David Pozen, Stanford Law Review, forthcoming:

A new book revisits the case of Frank Olson, the Army biochemist who fell to his death in 1953 after having been unwittingly dosed with LSD in a CIA experiment. "A Terrible Mistake: The Murder of Frank Olson and the CIA's Secret Cold War Experiments" by H.P. Albarelli Jr. was published this month by TrineDay, which says it "specializes in releasing books that are shunned by mainstream publishers due to their controversial nature."

Child welfare hearings in the District of Columbia Family Court, which are currently conducted behind closed doors, should be opened to the public, argued law professor Matthew I. Fraidin in recent testimony before the D.C. Council. Open hearings would promote improved protection for the children, increased professionalism by the adult participants, and greater accountability all around, he said. See "Opening Child Welfare Proceedings in the Family Court of the District of Columbia," November 4, 2009:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
      http://www.fas.org/sgp/eprint/aftergood.pdf

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