National Archives, Washington, DC (NARA)
The Lloyd Papers relating to the claim Lloyd and his heirs made against the US War Department between 1865 and 1871, before the case was referred to the US Court of Claims, are invaluable primary sources. These papers consist of evidence from 1865 and comprise sixty-six enclosures as well as post-1865 letters and documents. There are two parts to the Lloyd Papers. The first is the 1865 claim and the second are those documents relating to the claim made by Virginia Lloyd after her husband’s death in 1869. File 640-L-1865. (National Archives Microfilm Publication M619 Record Group 94. “Letters Received by the Office of the Adjutant General,” Main Series, 1861–1870, during and after the Civil War period. M619, Roll 375); Letters Received (Main Series); Record Group 94, Records of the Adjutant General’s Office. 1870s–1917; National Archives Building, Washington, DC.
In addition to the Lloyd Papers, “The Confederate Citizens File: Papers Relating to Citizens or Businesses Firms, 1861–1870, Record Group (RG) 94,” is an important resource consisting of letters to and from Lloyd to prominent individuals, prison correspondence, bills of sale, etc.
As well we have quoted extensively from the “Records of the United States Court of Claims, Selected Documents From General Jurisdiction Case NO. 6329, Record Group (RG) 123. William A. Lloyd Case. 1871–1873.”
Supreme Court
The Supreme Court Cases, Totten vs. the US, 92, US 105 (1875), and Tenet et al. v. Doe et ux. (2005), are critical to the understanding of the fate of Lloyd’s claim and its continuing impact on the rights of clandestine operatives.
Lloyd and his claim appear in various books and articles. All are derivative of the original myth of Lloyd-as-Lincoln’s spy. They are as follows, arranged chronologically:
1957. Francis E. Rourke, “Secrecy in American Bureaucracy,” Political Science Quarterly, vol. 72: Academy of Political Science. Rourke writes that Totten was engaged by Lincoln to spy for him.
1963. Allen W. Dulles, The Craft of Intelligence (New York: Evanston & London: Harper & Row, Publishers, 1963). In 1965, Globe Pequot Press reprinted/reissued The Craft of Intelligence. In this work, Dulles revisits the history of the claim, Lloyd’s duties as Lincoln’s spy, and the Supreme Court case as he understood it, but never questioned the veracity of the actual claim. Reprint of Allen W. Dulles: The Craft of Intelligence: America’s Legendary Spy Master on the Fundamentals of Intelligence Gathering for a Free World. (Guilford, Connecticut, Lyons Press; 1st edition paperback.) (April 1, 2006) Paperback reprint.
1974. The Civil War Times Illustrated, vol. 13, 1974, advertised an upcoming article, or possibly book, by John Bakeless, called “Lincoln’s Conspicuous Spy.”
1975. John Bakeless’s article, “Lincoln’s Private Eye” came out in the Civil War Times Illustrated, vol. 14. Until now (2014), this has been the seminal work on Lloyd.
1989. Nathan Miller, Spying for America: The Hidden History of US Intelligence (St. Paul, Minnesota, Paragon House, 1989). This work does not offer any new insights and there is nothing about Lloyd himself.
1991. Patricia L. Faust, Historical Times Illustrated Encyclopedia of the Civil War (New York: Harper Perennial, 1991). (First published by Harper & Row, 1966.) There is only one sentence on Lloyd and author Faust mentions “Thomas Boyd” in that same sentence.
1992. Alan Axelrod, The War between the Spies: A History of Espionage During the Civil War (New York: The Atlantic Monthly Press, 1992). Chapter two is called “The Reluctant Spy,” and deals with William Alvin Lloyd. Clearly inspired by John Bakeless’s 1975 article, “Lincoln’s Private Eye,” at least the parts that concern Lloyd. It appears that Axelrod went nowhere else but to the Bakeless article for his information. The first words of the article are, “He was a perfectly ordinary man.” Then come eight pages of non-Lloyd material, in a chapter that is eighteen pages long. Mr. Axelrod reintroduces Lloyd with “he was a highly respected businessman.” He then goes on to say, “His was a perfectly ordinary business.” In contrast to Axelrod’s assertion that “none of Lloyd’s documents or notes survives,” in fact, they have been retrieved, analyzed, and are published in Lincoln’s Secret Spy.
1996. Christopher Andrew. For the President’s Eyes Only: Secret Intelligence and the American Presidency from Washington to Bush (New York, Toronto, and Sydney: Harper Perennial, 1996). This book about presidential intelligence portrays Lloyd as a bumbling agent, who did little to help the Union effort. Donald E. Markle portrays him more positively, saying that “despite Lloyd’s habit of getting arrested, he managed to provide a few useful reports. Lincoln paid Lloyd’s expenses, but never his $9753 salary. After Lincoln was assassinated and Lloyd died, Enoch Totten, the head of the spy’s estate, sued the federal government to claim the salary.”
1996. Stephen F. Knott. Secret and Sanctioned: Covert Operations and the American Presidency (USA: Oxford University Press, 1996).
1998. C. Brian Kelly. Best Little Stories from the Civil War (Nashville, Tennessee: Cumberland House, 2nd ed., 1998).
2000. Donald E. Markle. Spies and Spymasters of the Civil War. (New York: Hippocrene Books, 2000).
2000. John J. Carter. Covert Operations as a Tool of Presidential Foreign Policy in American History from 1800 to 1920 (Lampeter (Wales), London, and Lewiston, NY: Edwin Mellen Press, 2000).
2000. Gail Stewart. Weapons of War (Farmington Hills, Michigan, Lucent Books, 2000). A mere mention of Lloyd, but nothing new.
2001. David D. Ryan, ed. Yankee Spy in Richmond (Mechanicsburg, Pennsylvania: Stackpole Books, 2001). This book purports to be the Civil War diary of Elizabeth Van Lew. In the preface Mr. Ryan has quoted John Blakeless [sic] on William Alvan Lloyd [sic] as an example of a “quote” Union Spy in the South. p. 2.
April 22, 2001. Gene Johnson, the Columbian (Vancouver, Washington), wrote an article on John Doe, the diplomat, and cited the Lloyd case.
June 29, 2004. Walter Pincus, in an article in the Washington Post, refers to the Lloyd case but again, repeats that Lloyd was Lincoln’s spy.
January 10, 2005. William Adair wrote in the St. Petersburg Times (Florida), about John Doe, the contemporaneous diplomat. “President Lincoln secretly enlisted William A. Lloyd to spy on the Confederacy. Lloyd had the makings of a great secret agent. He had a good cover story—he wrote guidebooks about railroads—and had to travel through the South to conduct his research. Lincoln promised him $200 a month plus expenses, according to Spies and Spymasters of the Civil War, by Donald E. Markle. In his contract, Lloyd agreed to report on Confederate troops and any plans for ‘forts and other battle structures’ [a quote invented by Mr. Markle, rather than one from the nineteenth century]. He was to report only to Lincoln. Lloyd apparently was not very good at espionage. He was imprisoned at least twice because of suspicions he was a spy, and, at one point, carried his secret contract in his hat [an anecdote from C. Brian Kelly’s book].”
January 12, 2005. Alan Freeman mentioned the Lloyd case in the Globe and Mail (Toronto).
March 3, 2005. David Stout (of the New York Times News Service) had an article in the Deseret News (Salt Lake City) that mentioned the Lloyd case.
2005. Loch K. Johnson. Handbook of Intelligence Studies (e-book). By the following year Routledge Press (Abingdon, Oxford, UK, 2006), published a trade edition. This book mentions the Lloyd case while talking about the 2005 John Doe case, and the writer remains justly skeptical.
2005. Kenneth J. McCulloch and James O. Castagnera. Termination of Employment: Employer and Employee Rights (West Group, 2005, and Prentice Hall, 2007). “Totten vs United States, 92 US 105 (1875) is an 1875 decision in which the Supreme Court said that a Civil War spy named William A. Lloyd could not pursue his claim that President Abraham Lincoln had contracted with him to spy behind the Confederate lines for $200 a month. Lloyd’s estate sued the federal government, claiming that only the spy’s expenses had ever been covered. The Totten Doctrine holds that those who spy for America cannot later sue over broken promises, because (in the words of the Ninth Circuit dissenters) ‘that would require exposure of matters that must be kept secret in the interest of effective,’ etc, etc.”
2007. Symposium. James E. Beasley School of Law.
2007. P. J. Huff and J. G. Lewin. How to Tell a Secret: Tips, Tricks, and Techniques for Breaking Codes (Harper Paperback, 2005).
2007. James E. Baker. In the Common Defense (New York: Cambridge University Press, 2007).
2009. Floyd Paseman. A Spy’s Journey: A CIA Memoir (Minneapolis, Minnesota: Zenith Press, 2009). Paperback reissue edition of 2005 and November 8, 2009.
2011. Glenn P. Hastedt, ed. Spies, Wiretaps, and Secret Operations (Westport, Connecticut: Greenwood Publishing Group, 2011).
2013. Howard Brinkley, Spy (Create Space Independent Publisher, 2013).
Bibliography: Part Two
American Jewish History, vol. 91, issues 3-4. Baltimore: Johns Hopkins University Press for the American Jewish Historical Society, 2005.
Arthur-Cornett, Helen. Remembering Concord. Articles from the Look Back Collection. Charleston, South Carolina: The History Press, 2005.
Atwater, Caleb. Writings of Caleb Atwater. Columbus, Ohio (published by the author, 1833), and Bedford, Massachusetts: Applewood Books, (reprint), 2007.
Barrett, John G. The Civil War in North Carolina. Chapel Hill: University of North Carolina Press, 1963.
Billings, John Shaw. “A Report on Barracks and Hospitals: With Descriptions of Military Posts.” Washington, DC: Government Printing Office, 1870.
The Biographical Dictionary and Portrait Gallery of Representative Men of Chicago, Milwaukee and the World’s Columbian Exposition. Chicago and New York: American Biographical Publishing Company, 1892.
Blakey, Arch Frederic. General John H. Winder, C.S.A. Gainesville: University of Florida Press, 1990.
Brock, Sallie A., Richmond During the War. New York: Carleton & Company, 1867.
Brown, T. Allston. “Early History of Negro Minstrelsy: Its Rise and Progress in the United States.” This was a long-running series in the New York Clipper, beginning on February 24, 1912, and running through to the end of 1913. A general background on Alvin Lloyd is in the January 11, 1913, issue, on page 1, while another version of the 1867 incarnation of Lloyd’s Minstrels is in the December 6, 1913, issue, page 15.
Brown, T. Allston History of the New York Stage. Vol. 1, New York: Dodd, Mead & Co. 1903.
Bulloch, Joseph Gaston Baillie. A History and Genealogy of the Habersham Family. Columbia, South Carolina: The R.L. Bryan Co., 1901.
Burlingame, Michael, ed., Dispatches from the Lincoln White House: The Anonymous Civil War Journalism of Presidential Secretary William O. Stoddard. Lincoln: University of Nebraska Press, 2002.
Christensen, Lawrence O., Foley, William E., Kremer, Gary R., and Winn, Kenneth H. Dictionary of Missouri Biography. Columbia: University of Missouri, 1999.
Cumming, Carman. Devil’s Game: The Civil War Intrigues of Charles A. Dunham. Urbana and Chicago: University of Illinois Press, 2004.
DeLeon, Thomas C. Four Years in Rebel Capitals. The Gossip Printing Company, 1892.
Dickens, Charles, The Works of Charles Dickens. Harper and Brothers Publishing, 1877.
Dix, Morgan. Memoirs of John Adams Dix: Compiled by his Son, vol. 11. New York: Harper & Brothers, 1883.
Documents of the Assembly of the State of New York. Eighty-Ninth Session, 1866. Vol. 4. Nos. 61-85. Albany, New York: G. Wendell, Legislative Printer, 1866.
Emerson, Ken. Doo-dah! Stephen Foster and the Rise of American Popular Culture. New York: Simon & Schuster, 1997.
Field, Ron. Petersburg 1864–65: The Longest Siege. Oxford, England: Osprey Publishing, 2009.
Fishel, Edwin C. The Secret War for the Union: The Untold Story of Military Intelligence in the Civil War. Boston: Houghton Mifflin Company, 1996.
Fraser, Walter, Jr. Savannah in the Old South. Athens: University of Georgia Press, 2003.
Gagnon, Michael J. Transition to an Industrial South; Athens, Georgia, 1830–1870. Baton Rouge: Louisiana State University Press, 1992.
Grant, Ulysses S. Personal Memoirs of US Grant, Volume Two, Chapter LXX. New York: Charles L. Webster & Company, 1885–86.
Hanna, A. J. Flight Into Oblivion. Richmond, VA: Johnson Publishing Company, 1938, and Baton Rouge: Louisiana State University Press, 1999.
Hartley, Chris J. Stoneman’s Raid, 1865. Winston Salem, NC: John F. Blair, Publisher, 2010.
Hoehling, A. A. and Hoehling, Mary. The Day Richmond Died. San Diego, CA: A. S. Barnes, 1981.
Hyde, William and Conard, Howard L. Encyclopedia of the History of St. Louis, vol. 3. New York, Louisville, St. Louis: The Southern History Company, 1899.
Jasen, David A. and Jones, Gene. Spreadin’ Rhythm Around: Black Popular Songwriters, 1880–1930. New York: Routledge, Taylor and Francis, 2004.
Johnson, Loch K. (ed.). Handbook of Intelligence Studies. Abingdon (Oxfordshire) and New York, 2007.
Johnson, Susan B. Savannah’s Little Crooked Houses: If These Walls Could Talk. Charleston, South Carolina: The History Press, 2007.
Jones, Jacqueline. Saving Savannah: The City and the Civil War. New York: Alfred A. Knopf, 2008.
Keever, Homer M. Iredell, Piedmont County. Iredell County Bicentennial Commission, 1976.
Kleber, John, editor. The Encyclopedia of Louisville. Lexington: The University Press of Kentucky, 2001.
Kolin, Philip C. Shakespeare in the South: Essays on Performance. Jackson: University Press of Mississippi, 1983.
Konkle, Burton Alva. John Motley Morehead and the Development of North Carolina, 1796–1866. Philadelphia: William J. Campbell, 1922.
Leonard, Elizabeth D. Lincoln’s Avengers: Justice, Revenge and Reunion after the Civil War. New York, London: W.W. Norton & Company, 2004.
Leonard, Elizabeth D. Lincoln’s Forgotten Ally: Judge Joseph Holt of Kentucky. Chapel Hill: The University of North Carolina Press, 2011.
Mackay, James. Allan Pinkerton: The Eye Who Never Slept. Edinburgh & London: Mainstream Publishing, 1996.
Martin, Samuel J. General Braxton Bragg, C.S.A. Jefferson, North Carolina: McFarland & Company, Inc., 2011.
Mahar, William J. Behind the Burnt Cork Mask: Early Blackface Minstrelsy and Antebellum American Popular Culture. Champaign: University of Illinois Press, 1999.
McFeely, William S. Grant, A Biography. New York, London: W.W. Norton & Company, 1982.
McKenzie, Robert Tracy. Lincolnites and Rebels: A Divided Town in the American Civil War. Oxford University Press, 2006.
McTyre, Joe and Paden, Rebecca Nash. Historic Roswell, Georgia. Charleston, South Carolina: Arcadia Publishing, 2001.
Miller, Nathan. Spying For America. St. Paul, Minnesota: Paragon House, 1989.
Mitchell, Broadus. The Rise of Cotton Mills in the South. Baltimore: Johns Hopkins Press, 1921.
Olmstead, Charles H. “Savannah in the ’40s.” Georgia Historical Quarterly, vol. 1, March 1917. Savannah, Georgia.
Osborne, William. Music in Ohio. Kent, Ohio: Kent State University Press, 2005.
Powell, William S., ed. Dictionary of North Carolina Biography. Chapel Hill: University of North Carolina Press, 1991.
Proceedings of the Grand Lodge of Free and Accepted Masons of the District of Columbia for the Year 1871. Washington, DC: Republican Job Office Print, 1872.
Recko, Corey. A Spy For The Union: The Life and Execution of Timothy Webster. Jefferson, North Carolina, and London: McFarland & Company, Inc., 2013.
Reinders, Robert. End of an Era: New Orleans, 1850–1860. Gretna, Louisiana: Pelican Publishing Company, 1994.
Rice, Edward Le Roy. Monarchs of Minstrelsy, From Daddy Rice to Date. New York: Kenny Publishing Company, 1911.
Ripley, Edward Hastings. Final Scenes at the Capture and Occupation of Richmond. New York: Military Order of the Loyal Legion of the United States (MOLLUS), vol.3, December 5, 1906, pp. 472–502. See also, Vermont General: The Unusual War Experiences of General Edward Hastings Ripley, ed. Otto Eisenschiml: Devon Adair Press, 1904.
Scharf, J. Thomas. History of Western Maryland. Philadelphia: Louis H. Everts, 1882.
Seward, Frederick William. Seward at Washington as Senator and Secretary of State: A Memoir of His Life, with selections from his letters, 1861–1872. New York: Derby and Miller, 149 Church Street, 1891.
Singer, Jane. The Confederate Dirty War: Arson, Bombings, Assassination and Plots for Chemical and Germ Attacks on the Union. Jefferson, North Carolina, and London: McFarland & Company, Inc., 2005.
Slout, William L. Burnt Cork and Tambourines: A Source Book of Negro Minstrelsy. San Bernardino, California: Borgo Press, 1995.
Steers, Edward, Jr. Blood on the Moon: The Assassination of Abraham Lincoln. Lexington: University Press of Kentucky, 2001.
Stevens, Walter Barlow. St. Louis, the Fourth City, 1764-1909. vol. 1. St. Louis/Chicago: The S. J. Clark Publishing Company, 1911.
Stewart, John. Jefferson Davis’s Flight From Richmond. Jefferson, North Carolina: McFarland & Company, Inc., 2015.
Strong, George Templeton. The Diary of George Templeton Strong (The Civil War 1860-1865). New York: The Macmillan Company, 1952.
Temple, Oliver Perry. Notable Men of Tennessee, from 1833 to 1875. New York: Cosmopolitan Press, 1912.
Thomas, Frances Taliaferro. A Portrait of Historic Athens & Clarke County. Athens: University of Georgia Press, 1992.
Walker, Mary Hubner. Charles W. Hubner: Poet Laureate of the South. Atlanta, Georgia: Cherokee Publishing Company, 1976.
Whitebread, Charles H., ed. “Recent Decisions, United States Supreme Court.” American Academy of Judicial Education, 2004.
Wilmer, Lambert. Our Press Gang, or a Complete Exposition of the Corruptions and Crimes of the American Newspapers. “The Case of James T. Lloyd.” Philadelphia: J. T. Lloyd. London: Sampson Low, Son & Co., 1859.
Wilson, Adelaide. Historic and Picturesque Savannah. Boston, Massachusetts: Boston Photogravure Co., 1889.
Newspapers
Our study of Lloyd and those associated with him was enhanced immeasurably by the following newspapers:
Alabama
Mobile Register
Arkansas
Daily Arkansas Gazette
California
Daily Alta
Daily Democratic State Journal
Los Angeles Herald
Sacramento Daily Union
San Diego Union
San Francisco Abend-Post
San Francisco Bulletin
San Francisco Chronicle
Rocky Mountain News
Connecticut
Daily Hartford Courant
New Haven Daily Palladium
New Haven Register
District of Columbia
Critic-Record
Daily Evening Star
Daily Globe
Daily National Intelligencer
Daily National Republican
Daily Union
Evening Times
Morning Times
Washington Post
Florida
St. Petersburg Times
Georgia
Augusta Chronicle
Atlanta Daily Intelligencer
Augusta Daily Constitutionalist
Macon Telegraph
Savannah Daily Morning News
Savannah Daily News and Herald
Savannah Daily Register
Thomasville Times-Enterprise
Idaho
Owhyee Avalanche
Illinois
Chicago Tribune
Daily Inter Ocean
Rockford Weekly Gazette
Indiana
Fort Wayne Daily Gazette
Indianapolis Sentinel
New Albany Daily Ledger
Kansas
Freedom’s Champion
Kentucky
Kentucky Tribune
Louisville Daily Courier
Louisville Daily Democrat
Louisville Daily Journal
Maysville Tri-Weekly Eagle
Weekly Courier
Louisiana
New Orleans Daily Crescent
New Orleans Daily True Delta
New Orleans Sunday Delta
New Orleans Times-Picayune
Maryland
Baltimore Sun
Easton Gazette
Massachusetts
Boston Daily Advertiser
Boston Daily Atlas
Boston Herald
Boston Investigator
Boston Journal
The Congregationalist
The Liberator
Springfield Republican
Michigan
Detroit Free Press
Jackson Citizen and Patriot
Minnesota
St. Paul Daily Globe
Mississippi
The Clarion
Jackson Daily News
Mississippi Free Trader and Natchez Gazette
The Mississippian
Natchez Courier
Daily Missouri Republican
St. Louis Democrat
St. Louis Globe-Democrat
St. Louis Herald
St. Louis Republic
St. Louis Reveille
Tri-Weekly Missouri Republican
Nebraska
Omaha Bee
New Hampshire
New Hampshire Patriot and State Gazette
New Jersey
South Orange Bulletin
Trenton State Gazette
New York
Albany Evening Journal
Albany Express
Albany Knickerbocker
Brooklyn Daily Eagle
Buffalo Courier and Republic
Frank Leslie’s Illustrated Newspaper
Geneva Advertiser
Harper’s Weekly
Lockport Daily Journal
New York Clipper
New York Daily Times
New York Daily Tribune
New York Dramatic Mirror
New York Evening Express
New York Evening Post
New York Evening Telegram
New York Herald
New York Police Gazette
New York Sun
New York Times
New York World
Nunda News
Oswego Palladium
Rochester Daily Union
Rochester Democrat and Chronicle
Syracuse Courier and Union
Syracuse Daily Courier
Syracuse Daily Standard
Syracuse Herald
Weekly Herald
North Carolina
Fayetteville Observer
Raleigh Daily Register
Raleigh News and Observer
Raleigh Semi-Weekly Standard
Raleigh Weekly Standard
Weekly Raleigh Advertiser
Ohio
Cincinnati Commercial Tribune
Cincinnati Daily Commercial
Cincinnati Daily Enquirer
Cincinnati Daily Gazette
Cincinnati Daily Press
Cincinnati Sun
Cleveland Plain Dealer
Cleveland Morning Leader
Daily Cleveland Herald
Daily Ohio Statesman
Daily Scioto Gazette
Fremont Journal
Highland Weekly News
Newark Advocate
Penny Press
Sandusky Register
Toledo Commercial
Zanesville Signal
Pennsylvania
North American and United States Gazette
Philadelphia Daily Evening Telegraph
Philadelphia Illustrated New Age
Philadelphia Inquirer
Philadelphia Public Ledger
Rhode Island
Pawtucket Times
Camden Confederate
Charleston Courier
Charleston Mercury
Tennessee
Clarksville Chronicle
Daily Nashville Patriot
Daily Nashville True Whig
Memphis Daily Appeal
Nashville Banner
Nashville Union and American
Weekly Nashville Union
Texas
Dallas Morning News
Dallas Weekly Herald
Galveston Daily News
Utah
Deseret News
Salt Lake Herald
Vermont
Vermont Chronicle
Virginia
Daily Richmond Examiner
Richmond Daily Dispatch
Richmond Enquirer
Wheeling Daily Intelligencer
Richmond Whig
Roanoke Times
Washington
The Columbian
Wisconsin
Milwaukee Daily Sentinel
Milwaukee Journal
Canada
Globe and Mail (Toronto)
United Kingdom
Aberdeen Journal
Belfast News-Letter
Berrow’s Worcester Journal
Blackburn Standard
Bradford Observer
Bristol Mercury
Cheshire Observer
Derby Mercury
The Era (London)
Exeter Flying Post
Freeman’s Journal (Dublin)
Hampshire Advertiser
Hampshire Telegraph
Hull Packet
Ipswich Journal
Isle of Wight Observer
The Lady’s Newspaper (London)
Lancaster Gazette
Liverpool Mercury
Manchester Times
Morning Chronicle (London)
Newcastle Courant
Nottinghamshire Guardian
Preston Guardian
Reynolds’ Newspaper (London)
Royal Cornwall Gazette
Sheffield and Rotherham Independent
Times (London)
Wrexham Advertiser
York Herald
Professor Robert M. Chesney, Associate Dean for Academic Affairs: Charles I. Francis Professor in Law, University of Texas at Austin, Director-Designate of the Robert S. Strauss Center for International Security and Law. Lawfareblog.com, utexas.edu/law/faculty/rmc2289.
“State Secrets and the Limits of National Security Litigation,” George Washington Law Review, 2007. Wake Forest University Legal Studies Paper No. 946676.
In 2007, Chesney wrote, “The state secrets privilege has played a central role in the Justice Department’s response to civil litigation arising out of post-9/11 policies, culminating in a controversial decision by Judge T.S. Ellis concerning a lawsuit brought by a German citizen—Khaled El-Masri—whom the US allegedly had rendered (by mistake) from Macedonia to Afghanistan for interrogation. Reasoning that the entire aim of the suit is to prove the existence of state secrets, Judge Ellis held that the complaint had to be dismissed in light of the privilege. The government also has interposed the privilege in connection with litigation arising out of the NSA’s warrantless surveillance program, albeit with mixed success so far.”
Unlike some other legal scholars, Professor Chesney does not feel there has been an actual conflation of the Totten Doctrine and the State Secrets Privilege as they have been interpreted over time.
Professor Laura Donohue (Georgetown University Law Center). “The Shadow of State Secrets,” University of Pennsylvania Law Review, Vol. 159, 2010; Georgetown Public Law Research Paper No. 10-10, March 8, 2010.
Sean C. Flynn. “The Totten Doctrine and its Poisoned Progeny,” Vermont Law Review, Spring 2001.
Douglas Kash and Matthew Indrisano. “In the Service of Secrets: The US Supreme Court Revisits Totten,” The John Marshall Law Review, Volume 39, Issue 2, 2006.
Daniel L. Pines. “The Continuing Viability of the 1875 Supreme Court Case of Totten v. United States,” 53 Admin. L. Rev. 1273, 1300, 2001.
Professor Steven Schwinn (John Marshall Law School). “The State Secrets Privilege in the Post-9/11 Era,” Pace Law Review, January 2010, Vol. 30, Issue 2, Winter 2010, Article 23. Schwinn discusses the confusion/conflation between the Totten Doctrine and the State Secrets Privilege. In 2010 Professor Schwinn wrote, “The state secrets privilege started as a common law evidentiary privilege that protected evidence if there was a “reasonable danger that compulsion of the evidence [would] expose military matters which, in the interest of national security should not be divulged. In the cases involving secret executive programs developed in the wake of the 9/11 attacks, however, the Government has repeatedly pressed to turn the privilege into something more like a justiciability doctrine—a claim that would foreclose all litigation on a matter when the very subject of litigation is a state secret.”
D. A. Jeremy Telman, Valparaiso University, Valpo Scholar, Law Faculty Presentations and Publications. “Intolerable Abuses: Rendition for Torture and the State Secrets Privilege,” 2012. valpo.edu/law/about-us/full-time-faculty/d-a-jeremy-telman.
D. A. Jeremy Telman. “A Corollary to the Totten Doctrine: Wilson v. CIA,” November 13, 2009. Professor Telman wrote, “The Totten doctrine requires dismissal of a case when ‘the very subject-matter’ of the case is a state secret. Today’s New York Times wrote that the Second Circuit has dismissed Valerie Wilson’s suit against the Central Intelligence Agency, in which she claimed that the Agency violated her free-speech rights when it required redaction of her 2007 book, Fair Game. As reported in the Times, the Second Circuit’s reasoning is based on a contractual override of Wilson’s 1st Amendment rights: ‘When Ms. Wilson elected to serve with the C.I.A., she accepted a life-long restriction on her ability to disclose classified and classifiable information.’ The problem is that at least some of the information in question had already been leaked to the public by the government and in any case was made public and widely reported on. No matter, says the court. The information is still classified, and she is still bound, even if governmental breaches ‘may warrant investigation.’ ”