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Report No. 69

IX. Position in U.S.A.

65.62. In the U.S.A., the privilege in question is known as "executive privilege". It is an aspect of sovereign immunity in the governmental authority to withhold evidence on the ground that disclosure would be against the public interest.1 Executive privilege has been asserted both vis-a-vis congress and in cases in court. This American version of Crown privilege has, however, never been pushed as far as the British doctrine. There has never been an American counterpart2 of Duncan v. Cammell, Laird & Co. Ltd., 1942 AC 624, in which the House of Lords held that Crown privilege could not be questioned in a court of law. American courts have consistently refused to recognise any absolute power in the executive to forbid the disclosure of evidence.

1. Schwartz and Wade Legal Control of the Executive, pp. 198-199.

2. Schwartz and Wade Legal Control of the Executive, p. 198.

65.63. The leading case in the U.S.A. upto 1974 was United States v. Reynolds, (1953) 345 US 1, reported in 1953. The case arose out of the crash of a military airplane on a flight to test secret electronic equipment. Several civilian observers aboard the airplane were killed in the Air crash. Their widows sued the government under the Federal Tort Claims Act. Plaintiffs moved for discovery of accident investigation report of the Air Force, but the government claimed privilege, and refused to produce the report.

The court rejected the view that the assertion of executive privilege was conclusive on the question of production. It recognised that there are "State secrets"1 which need not be disclosed. "The court itself must determine whether the circumstances are appropriate for the claim of privilege". Only where the court is satisfied "that compulsion of the evidence will expose military matters which in the interest of National Security, should not be divulged" will it refuse to require disclosure.

1. The term used in Model Code of Evidence, rule 227.

65.64. It would thus appear that in the U.S.A., the privilege for government secrets is qualified.1 The decision in United States v. Reynolds, (1953) 345 US 1: 97 L Ed 727, does suggest that the court might be warranted in balancing the competing needs and policies in deciding how far it should require disclosure to the Judge himself, in determining whether the matter is indeed privileged.

1. Wright The Law of the Federal Courts, (1963), p. 337, note 30.

65.65. It may be stated that in the United States, heads of Departments make regulations as to disclosure, which the Courts may or may not accept. American courts, it was stated1 in 1967, are less willing than English courts to accept a plea of privilege, and are willing to look at the documents, distinguishing between "secret of State" and mere "official information". The case decided in 1974 relating to documents whereof production was sought to be withheld by President Nixon fortifies this conclusion.2

1. Hood Philips Constitutional Law, (1967), p. 692.

2. United States v. Nixon, supra.

65.66. Five types of cases.-

It has been pointed out1 by an eminent American writer that the question of privilege for official information can arise in at least five different kinds of cases not all of which should necessarily be treated alike. The cases referred to by him are: (1) criminal proceedings; (2) civil proceedings with the State as party plaintiff; (3) civil proceedings with the State as party defendant; (4) proceedings in which the State is not a party; and (5) proceedings in which disclosure of the records of public authorities other than the Central Government is sought.2

son the basis of the above classification, the following detailed analysis of the position in each case has been offered by that writer:

1. See Schwartz American Administrative Law, (1958), p. 245.

2. Compare Note, (1954) 29 New York University Law Review 194, 201-11.

(1) Criminal Proceedings

It is state1 that the proper approach to be followed where claims of governmental privilege are invoked to prevent disclosure of official information in criminal proceedings is that articulated by Judge Learned Hand in United States v. Andolschek, 142 F 2d 503 (2d Cir 1944). In that case, the defendants were tax inspectors of a federal agency and were tried criminally for a conspiracy which included their taking of bribes. They sought discovery and the introduction in evidence of certain reports which they had made to their superiors in their official capacity.

According to Judge Learned Hand, the Government could not claim privilege for these official reports in such a criminal proceeding, "While we must accept it as lawful", states his opinion, "for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose, either it must have the transactions in the obscurity from which a trial will draw them, or it must expose them fully."2

Judge learned Hand's approach was relied on expressly by the United States Supreme Court in Jencks v. United States, (1957) 353 US 657 (672). That case involved a prosecution for filing a false affidavit with the National Labour Relations Board.

The Court held that the defendant was entitled to an order directing the Government to produce for inspection all reports of two Government witnesses to the Federal Bureau of Investigation touching upon events and activities as to which they testified at the trial, and the defendant was entitled to inspect such reports and to decide whether to use them in his defence. "We hold", the Court observed, "that the criminal action must be dismissed when the Government, on the ground of privilege elects not, to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. The burden is the Government's to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure."

We shall refer later to the epoch making decision in U.S. v. Nixon, which is peculiarly relevant to criminal cases.

1. Schwartz American Administrative Law, (1958), pp. 245-246.

2. United States v. Andolschek, 142 F 2d 503 (506) (2d Cir 1944).

(2) Civil Proceedings with State as Plaintiff

It can be argued1 that many of the considerations which apply to criminal cases apply as well to proceedings instituted by the State as party plaintiff. In such cases, too, it can be said, if the Government chooses to commence an action, it should stand in the position of the private litigant and be held to waive any privilege against disclosure of official information which it possesses if it were not a party to the litigation. As one American Judge has expressed it, it is but a short step, and a necessary one, from the rule of criminal cases discussed above, to the rule that where the State is the complainant in a civil suit, it should likewise be required to make its own choice-either to make disclosure or to drop the suit.2

1. Schwartz American Administrative Law, (1958), p. 247.

2. Bank Line Ltd. v. United States, 76 F Supp 801 (803) (S.D.N.Y. 1948). A striking case applying this principle is United States v. Cotton Valley Oil Operators Committee, 9 FRE 719 (D La 1949), affd. per curiam by an equally divided Court, 339 US 940 (1950), where an anti-trust action by the Government was dismissed because of its failure to submit documents whose disclosure was sought by discovery proceedings.

(3) Civil Proceedings with State as Defendant1

The use of the Crown-privilege doctrine in cases brought under the Crown Proceedings Act, 1947 gave rise in England to most of the criticism of that doctrine. Speaking of Crown privilege in Ellis v. Home Office, (1953) 2 QB 138, Devlin, J., declared-

"It is a rule, of course, which is particularly unfortunate when the person who is responsible for deciding whether they should be disclosed or not, happens also be the defendant in the action in which he is being sued. It means that every litigant against a government department-and such litigation is becoming more and more frequent as the sphere of government activities is extended-is denied, as a matter of course, the elementary right of checking the evidence of government witnesses against the contemporary documents."

As to the U.S.A., a number of American decisions apply the theory (already discussed) of waiver of privilege by the Government to cases brought under the American equivalent of the Crown Proceedings Act. Their reasoning is that the State, by consenting to be sued, has waived its privilege against disclosure of official information, just as it does when it institutes a criminal proceeding.2 It should be borne in mind that the Federal Tort Claims Act (and other American statutes authorizing suits against the State) contain no limitations such as that in section 28(2) of the Crown Proceedings Act, 1947, which expressly preserved the Crown privilege rule until it was abrogated in 1970. That being the case, American Judges have been able to read into the State's consent to suit, a consent to waive its privilege against disclosure of official information:

"The consent, being general, amounts to an endorsement of libel3 with the sovereign's command 'Soit droit fait al partie'. But right cannot be done if the government is allowed to suppress the facts in its possession."4

1. Schwartz American Administrative Law, (1958), pp. 248, 249.

1. Schwartz American Administrative Law, (1958), p. 199.

2. This was an admiralty suit, hence the use of this term.

3. Bank Line Ltd. v. United States, 76 F Supp 801 (104) (SDNY 1948).

(4) State not a Party

The disclosure of official information in suits to which the State is not a party, stands on a slightly different footing, even if one agrees with the view expressed in the American cases already referred to,1 under which the State waives whatever privilege it might otherwise have, by appearing as a party. When the State is itself a party, there is a real danger that the doctrine of privilege will be used to advance the Government's position as litigant. Where, on the other hand, the State is not a party, the suit is between private individuals alone, and the State has no direct interest in the outcome, there is much less danger of Crown privilege being used for the arbitrary suppression of evidence.

And this is why some American cases permit the State to claim privilege for official information in cases in which the State is not a party. It should, however be emphasised that, even under them, the rule on the Western side of the Atlantic does not begin to approach the doctrine of "privilege by unexaminable certificate" enunciated by the House of Lords in Duncan v. Cammeli, Laird & Co. The Court in the United States may still examine the evidence for which privilege is claimed to determine whether the claim of privilege is a valid one.

And where only official information not involving "State secrets" is at issue, it would seem that the American courts would not follow the approach of United States v. Reynolds, already discussed, under which the Judge looks only to see whether there is a reasonable danger that compulsion of the evidence will expose matters which should not be divulged. That approach is valid only where "State secrets" are involved. In the case of other official information, the Judge should determine himself whether there is, in fact, a public interest in barring disclosure. Only then should the claim of privilege be upheld, even'in cases in which the State does not have the direct interest of a litigant.

1. Schwartz American Administrative Law, (1958), p. 248.

(5) Public Authorities other than Central Government1

According to Scott L.J., in Blackpool Corporation v. Locker, Blackpool Corporation v. Locker, (1948) 1 KB 349 (380), nothing analogous to Crown privilege has yet been conceded by the courts to any Local Government Officer. The American Courts too look with disfavour upon assertions by administrative agencies, other than those of the Federal Government, of a privilege against disclosure of official information.2

1. Schwartz American Administrative Law, (1958), p. 250.

2. See Note (1954) 29 New York University Law Review 194, 209.

65.67. The suggestion of Schwartz1 as regards each situation is as follows:

(1) Criminal Proceedings: The Government must choose; either it must choose to leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.

(2) Civil Proceedings in which the State is a Plaintiff. Where the State is the plaintiff in a civil suit, it should likewise be required to make its own choice, either to make a full disclosure, or to drop the suit.

(3) Civil Proceedings in which the State is a defendant: The State's consent to be sued implies a consent also to waive its privilege against the disclosure of official information.

(4) Civil Proceedings in which the State is not a party: The State may claim privilege for official information in cases in which the State is not a party. But it is not as 'privilege by unexaminable certificate' enunciated by the House of Lords in Duncan v. Cammell, Laird & Co. The Court may still examine the evidences for which privilege is claimed, in order to determine whether the claim of privilege is a valid one. And, where only official information not involving "State secrets" is at issue, the court should not follow the narrower approach (under which the judge looks only to see whether there is a reasonable danger that "compulsion of the evidence will expose matters which should not be divulged). That narrower approach is valid only where "State secrets" are involved. In the case of other official information, the Judge should determine himself whether there is, in fact, a public interest is barring disclosure.

(5) Proceedings by or against other public authorities: Assertions by administrative agencies, other than those of the federal government, of a privilege against disclosure of official information are not allowed.

1. Schwartz American Administrative Law, 1958.

65.67A. According to the American Model Code of Evidence,1 which clearly makes a distinction2 between "State secrets" and "official information", the term "official information" means "information not open or therefore officially disclosed to the public relating to internal affairs of the United States acquired by a public official of .the United States in the course of his duty, or transmitted from one such official to another in the course of duty.3 Only State secrets are privileged.

1. Rule 228, American Penal Code of Evidence.

2. The distinction was anticipated in Wigmore, Evidence, section 2378 (3rd Edn., 1940).

3. A similar definition is contained in rule 34 of the Uniform Rules of Evidence, 1953.

65.68. While the propositions set out above hold true even today, their application was made in dramatic circumstances in United States v. President Nixon, (July 1974) 418 US 683 (708, 709), to which reference may now be made. These were the facts1-

Following an indictment alleging violation of federal statutes by certain staff members of the White House and political supporters of the President, the Special Prosecutor filed a motion under Fed. Rules of Crim. Proc. Rule 17(c), for a subpoena duces facum for the production before trial of certain tapes and documents relating to precisely identified conversations and meetings between the President and others. Having rejected the President's contentions-(a) that the dispute between him and the Special Prosecutor was non-justiciable as an 'intra-executive' conflict, and (b) that the judiciary lacked authority to review the President's assertion of executive privilege, the court stayed its order pending appellate review, which the President then sought in the Court of Appeals. The Special Prosecutor then filed, in that Court, a petition for a writ of certiorari before judgment (No. 73-1766) and the President filed a cross-petition for such a writ challenging the grand jury action (No. 73-1834). The Court granted both petitions.

1. Facts taken from the headnote in 418 US 683.

65.69. The President, claiming executive privilege, filed a motion to quash the subpoena. The District Court, after treating the subpoenaed material as presumptively privileged, concluded that the Special Prosecutor had made a sufficient showing to rebut the presumption and that the requirements of rule 17(c) had been satisfied. The Court thereafter issued an order for an in camera examination of the subpoenaed material.

65.70. The Supreme Court held that neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity front judicial process under all circumstances.1 Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Article II of the Constitution would plainly conflict with the function of the courts under the Constitution.

Although the courts will afford the utmost deference to Presidential acts in the performance of an Article II function-United States v. Burr, 25 F Cas 187 (190, 192) (No. 14,694),-when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, Fut merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of the process of law in the fair administration of justice.

On the basis of this Court's examination of the record, it cannot be concluded that the District Court erred in ordering in camera examination of the subpoenaed material, which shall now forthwith be transmitted to the District Court. Since a President's communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecutions be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor no in camera material is to be released to anyone.

1. The Court referred to Marburg v. Madison; 1 Cranch 137, 177: Baker v. Carr, 369 US 186 (211).

65.71 to 65.74. No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution.1

The following passage in the judgment is important:-

"The expectation of a President to the confidentiality of his conservations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and added to those values the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.

In Nixon v. Sirica, 159 U.S. App. D.C. 58: 487 F. ed. 700 (1973), the Court of Appeals held that such Presidential communications are 'presumptively privileged,' id. at 75, 487 F. 2d. at 717, and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that 'in no case of this kind would a court be required to proceed against the President as against an ordinary individual'; United States v. Burr, 25 F. Cas. 192.

But this presumptive privilege must be considered in the light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guilt shall not escape or innocence suffer'. Berger v. United States, 295 US 88. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive.

The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depends on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defence."

The decision of the Supreme Court in United States v. Nixon, (July 1974) 418 US 683, was unanimous. Despite press reports that there was considerable internal dispute among the Justices, it appears that they were of one mind from the beginning.2 The Supreme Court press officer announced that there had been only one conference of the Justice after the argument until the final opinion was issued. This implied that the Chief Justice had assigned himself to write the opinion at the initial conference for a unanimous Court. The opinion carefully examined each of the issues raised by the parties and in logical and inevitable steps declared that the President must deliver the subpoenaed tapes. Mr. St. Clair-Counsel for the President-immediately announced that the President would comply with the ruling.

1. Powell v. McCormack, (1969) 395 US 486; Youngstofn Sheet & Tube Co. v. Sawyer, (1952) 343 US 579.

2. Leon Friedmann (Ed.) United States v. Nixon, (1975), p. 600.

The Brief for Mr. Nixon put the point thus-

"The universal view of the legal community, as reflected in the literature, was that the courts Jack power to substitute their judgment for that of the Presidents on an issue of this kind and that they lack power to compel a President to make production. It was, quite literally, horn-book law that 'confidential communications to and from the President are inviolate to a judicial request.-Forkosch, Constitutional Law 131 (1963)."1

The crucial question in United States v. Nixon was that raised in the brief for the American Civil Liberties Union:-

"The issue is whether the President has the implied authority under the Constitution to withhold data from Congress (and the Courts) solely in his discretion, or whether his decision to do so is subject to constitutional limitation and judicial review."

This issue was answered squarely by deciding that the President has no such authority.

1. Leon Friedman United States v. Nixon, (1975), p. 600.

A distinguished American constitutional lawyer1 has thus summed up the importance of this ruling:-

"Great Supreme Court cases, especially those dealing with separation-of-powers review over presidential and legislative authority are sometimes like delayed-fuse aerial bombs. They have an initial impact when they first hurtle to earth, but their greater effect comes later, when then full explosive force is released. That is quite likely to be the legacy of United States v. Nixon. The decision's immediate effect was to order 64 taped conversations to be delivered. And the immediate rule of law in the public focus is that the President cannot withhold information from a criminal proceeding in which such information is directly relevant, on the grounds of a general claim that this would impair the confidentiality of executive communications and not be in the public interest. But the decision declared a larger promise that will be far more significant in the long run.

It rejects the argument of some populist-minded commentators that there is no constitutional basis at all for executive privilege. The Justices were unanimous in declaring that in many key areas-the court stipulated 'military, diplomatic or sensitive national security secrets'-the President has a constitutional basis for asserting privileges and can have this enforced by the courts. In my view, this judgment about the Executive's need for and right to confidential communications is entirely right in principle. What it will mean in practice, however, is that from now on, the Federal Courts have been given the role of arbitrating both the general definitions and the document-by-document review of those Presidential communications that may become central to criminal proceedings."

1. Alan Westin, Foreword to Leon Friedmann, (Ed.) United Stats v. Nixon, (1975), p. 20.

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