Smith on the Cold War Roots of a Law Enforcement Privilege

Stephen W. Smith, Texas Southern University, Thurgood Marshall School of Law, has posted Policing Hoover's Ghost: The Privilege for Law Enforcement Techniques, which traces the genealogy of the aforementioned privilege to the McCarthy-era prosecution of Judith Coplon.  The article is forthcoming in the American Criminal Law Review:

Various legal doctrines have been devised over the years to ensure bureaucratic opacity — state secrets, classified information, executive privilege, legislative privilege, judicial privilege, deliberative process privilege, housekeeping privilege, informer’s privilege, investigative files privilege, and so on. The newest of these is the so-called law enforcement sensitive privilege, now regularly invoked to shield new (and sometimes not so new) techniques and methods used to investigate and prevent crime. In one notable recent criminal case, a federal judge in Arizona invoked this privilege to justify withholding evidence about an electronic device known as the “Stingray”, which the FBI had used to track down a suspect accused of identity theft and tax fraud. Until now, the paternity of this privilege has been obscure, although bits and pieces of the story are well-known and documented.

The FBI arrest Judith Coplon (1949)(wiki)

This article attempts to assemble those pieces into a coherent genealogy. Our tale begins with three fascinating protagonists: a Barnard College alumna recruited as a Soviet spy while working under the government’s nose in the Justice Department; the most brilliant and influential federal judge never to sit on the Supreme Court; and the famously secretive law enforcement icon who built the FBI into the nation’s foremost crime-fighting force. All three came together at a seminal moment in the McCarthy Era, with a combustive force whose impact lingers to this day. This was the moment of conception for the law enforcement privilege.

The balance of the article traces this doctrine’s growth to maturity, including (ironically) the passage of the Freedom of Information Act; subsequent DOJ-sponsored FOIA amendments exempting investigative files; early court decisions adopting a limited surveillance location privilege; and later decisions recognizing a qualified privilege for law enforcement “sensitive” information. Along the way we pause to relate a personal encounter with the FOIA exemption for law enforcement techniques. The article concludes with a handful of critiques, both practical and theoretical, that might curb the prevailing enthusiasm for this youngest member of the government privilege family.