Covering “state secrets” cases under the Obama administration’s new policy

From the Fall 2010 issue of The News Media & The Law, page 27.

In September 2009, U.S. Attorney General Eric Holder announced new guidelines for when the Department of Justice would invoke the “state secrets” privilege in court to shield the disclosure of sensitive information — and, in some instances, to seek dismissal of entire court cases — in the name of national security.

Since that time, the Obama administration’s continued reliance on the privilege in a variety of cases, ranging from the alleged state sponsorship of torture, targeted killings and warrantless surveillance programs, to the government purchasing of military aircraft, has remained controversial. For reporters, the administration’s recent invocations of the privilege have posed a challenge to reporting, but also provide another basis for assessing the administration’s claims of open government.

The state secrets privilege

The idea that the government would oppose the disclosure of some information for national security purposes in court is not surprising. In general terms, the state secrets privilege is a legal doctrine that the government may assert to prevent disclosing secret information in court that is likely to harm national security. As the U.S. Supreme Court wrote in the 1953 case of United States v. Reynolds, the “military and state secrets privilege” applies when “there is a reasonable danger that compulsion of . . . evidence will expose military matters which, in the interest of national security, should not be divulged.”

Over the years, the government has claimed state secrets as an evidentiary privilege to oppose the disclosure of certain specific information in court, and also as part of a broader doctrine to support the wholesale dismissal of entire cases in which the subject matter of the case is said to be a state secret. As applied by the U.S. Supreme Court as well as lower courts, the state secrets doctrine is a privilege that the government can invoke, but it is up to the courts to decide whether to allow the privilege in a particular case.

The history of the state secrets privilege is marked by controversy, dating back at least to the 1953 Reynolds case. The Supreme Court in Reynolds upheld the government’s state secrets privilege claim based on the government’s assertion that disclosing crash investigation information about a military aircraft would divulge state secrets. Decades later, when the withheld documents became public, it sparked significant debate — including in the Senate Judiciary Committee — concerning whether the government had invoked the privilege not out of a need to protect secret information, but rather to hide embarrassing facts about the government’s handling of the affair.

The skepticism about the use of the privilege has not subsided in recent years. The Los Angeles Times commented in a 2009 editorial that “the history of the privilege suggests that the government may use it not so much to protect national security as to prevent its own illegal or embarrassing misadventures from coming to light.” Another often-expressed criticism with the doctrine is that it is invoked too broadly, without effective oversight.

The state secrets privilege under the Obama Administration

The Obama administration’s 2009 guidelines for invoking the state secrets privilege were intended to address public concerns about the government’s use of the privilege. In issuing the new policy, Holder issued a statement that the guidelines were an “important step toward rebuilding the public’s trust in the government’s use of this privilege while recognizing the imperative need to protect national security.”

The guidelines themselves provide that the privilege will be invoked rarely. “The Department is adopting these policies and procedures to strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at state and only to the extent necessary to safeguard those interests,” the guidelines say.

The guidelines detail specific procedures to be followed before the government invokes the privilege. Specifically, the guidelines:

• create a legal standard that requires the requesting governmental agency to demonstrate that disclosure of the protected information “reasonably could be expected to cause significant harm to the national defense or foreign relations (‘national security’) of the United States”;

• require the “narrow tailoring” of the privilege, so that the privilege shall be invoked “only to the extent necessary to protect against the risk of significant harm to national security”;

• provide that the privilege will not be used to hide embarrassing facts, errors, violations of the law, to restrain competition, or to delay the release of information that is not reasonably expected to harm national security;

• require extensive review and departmental approval of any request to invoke the privilege, including securing the personal approval of the attorney general or a top assistant.

No records are publicly available from the Department of Justice on the number of cases in which the Obama administration has invoked or defended the use of the state secrets privilege. But according to the 2010 Secrecy Report Card issued by the OpentheGovernment.org coalition, the Obama administration invoked the state secrets privilege in four separate cases in 2009, all of which began under the Bush administration.

The Obama administration in September received a favorable appellate court decision in one of the most closely watched state secrets cases, Mohamed v. Jeppesen Dataplan, Inc.

The plaintiffs in Jeppesen Dataplan allege that they were processed through the CIA’s extraordinary rendition program and subjected to detention and torture. They assert that the private contractor defendant, Jeppesen Dataplan, was partially to blame for the harm they suffered because the contractor had provided flight support services for the CIA’s program.

The case was filed during the Bush administration, which intervened in the case before the defendant answered the complaint to assert that the case must be dismissed to protect state secrets. The trial court dismissed the case, but a three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) reversed, concluding that the state secrets privilege did not justify outright dismissal of the case at the early stage of the proceedings. The government — now under the Obama administration — requested reconsideration by the full court, reasserting that the state secrets privilege necessitated dismissal of the case.

By a 6-5 margin, the appeals court agreed with the government. Judge Raymond Fisher, writing for the majority, acknowledged that the case presented a “painful conflict between human rights and national security.” Although dismissing an entire case based on the state secrets privilege is a “drastic result,” it was also necessary.“There is no feasible way” to litigate the case “without creating an unjustifiable risk of divulging state secrets,” the opinion states. The emphasis is in the opinion.

The Obama administration has also continued the Bush administration’s invocation of the state secrets privilege in high profile cases that challenge the government’s alleged unlawful domestic surveillance program. In a briefing filed in October in the U.S. Court of Appeals in San Francisco, attorneys for the Department of Justice maintain that the state secrets privilege mandates the dismissal of two consolidated cases in which the plaintiffs claim that they were the subjects of illegal warrantless surveillance.

These appeals, Jewel v. National Security Agency and Shubert v. Obama, follow on the heels of the government’s invocation of the state secrets privilege in a number of other cases involving the warrantless surveillance program. The Obama administration’s briefing continues the argument for the invocation of the state secrets privilege, arguing that confirming or denying information central to the lawsuits, including whether the plaintiffs were subjects of the alleged surveillance, would “cause exceptionally grave harm to national security.”

The Obama administration did not inherit all of the state secrets cases; it has also asserted the privilege on its own. This September, the Obama administration asked a federal district court judge in Washington, D.C., to throw out on state secrets grounds a case filed earlier this year by Nasser Al-Aulaqi. In the case, Al-Aulaqi v. Obama, Al-Aulaqi alleges that the federal government unlawfully intends to use lethal force outside of an armed conflict to kill his son, Answer Al-Aulaqi, who is a dual American-Yemeni citizen. Nasser Al-Aulaqi’s suit seeks an injunction prohibiting the government from unlawfully targeting his son for state-sanctioned killing.

The administration’s court papers refuse to confirm or deny the existence of any “targeted killings” policy towards Al-Aulaqi’s son, whom the government asserts to be a leader of an al-Qaida terrorist group. Instead, the administration argues that the case should be dismissed for a host of different reasons, one of which is the state secrets privilege.

“[S]pecific categories of information properly protected against disclosure by the privilege would be necessary to litigate each of [Al-Aulaqi’s] claims,” the government asserts, “and the case therefore cannot proceed without significant harm to the national security of the United States.” The brief maintains that the government is not invoking the privilege lightly, but that it is necessary in this lawsuit because the allegations put “directly at issue the existence and operational details of alleged military and intelligence activities directed at combating the terrorist threat to the United States.”

The Obama administration also has two related cases involving the state secrets doctrine currently before the Supreme Court. General Dynamics Corp. v. United States and Boeing Co. v. United States are companion cases involving decades-old contract disputes between the Navy and defense contractors. The Navy claims that the contractors breached their contracts by failing to properly design and build the promised military aircraft. The contractors claim that they were unable to build the aircraft as specified because the government refused to turn over promised confidential technological know-how. The state secrets privilege comes into play because the contractors say that the government’s invocation of the privilege deprived the contractors of a valid defense.

Reporting and the state secrets privilege

The manner in which the Obama administration has used the state secrets privilege is a source of public controversy.

Carrie Johnson, the Justice Department correspondent for National Public Radio who also reported on the state secrets privilege while working for The Washington Post, said that a lingering suspicion remains among journalists covering these cases about how the privilege is used.

She noted the history of the privilege, referencing the controversy over the government’s use of the privilege in the 1953 Reynolds case.

A recent The New York Times editorial expressed a similar concern. “Everyone recognizes that there are secrets that must be protected,” the Times wrote, “but the doctrine has been used to cover up illegal and embarrassing acts or to avoid needed public discussion of policies.”

Patrice McDermott, the director of OpenTheGovernment.org, said that the Obama administration’s public justification for invoking the privilege has not been transparent enough to allow the public to have a sense of why the secrecy claim is being made. The result is that the public is left with the government’s word that the privilege is being invoked to protect national security. Yet the public “needs more than the government’s word” in such situations, McDermott said.

The government’s invocation of the privilege to attempt to stop lawsuits at an early stage also raises questions. In such circumstances the problem is that we “don’t know what we don’t know,” NPR’s Johnson said. She pointed to the recent Jeppesen Dataplan decision. Setting aside the merits of the case, Johnson said that from a reporter’s perspective, the issue is that there are a lot of unanswered questions about the alleged program —such as how it worked operationally and what countries were involved — that the government does not fully answer when it successfully invokes the privilege.

TheWashington Post’s Ellen Nakashima commented on a similar issue. Nakashima encountered the state secrets privilege when reporting on a class action against AT&T alleging warrantless surveillance by the National Security Agency. That case was ultimately dismissed — although it is now on appeal, on different grounds — after Congress granted immunity to telecommunications companies.

But Nakashima noted that the Obama administration has continued to invoke the state secrets privilege in the Jewel warrantless surveillance case that is currently before the U.S. Court of Appeals. “The frustration in covering cases like this is you cannot get to the merits of the argument — whether a program is constitutional or not — if the case is shut down before that point,” Nakashima said in an e-mail.

In another respect, the invocation of the privilege can foster additional reporting by raising more questions and awareness about the case, said San Francisco Chronicle reporter Bob Egelko. Egelko pointed to the Jeppesen Dataplan case as a good example.

“As the plaintiffs’ lawyers have pointed out, there really aren’t many secrets here: What happened to the five men has been widely reported, by European governments and in several cases by the plaintiffs’ own declarations, available in the court docket,” Egelko said. In fact, by invoking the state secrets privilege, the government only adds to the scrutiny of the underlying policies. “I’m sure there are details we don’t know because of secrecy, but the outline of the case is no secret, and it’s sharpened by the government’s claim of the need for secrecy,” Egelko said. In other words, the story becomes “the government’s insistence that admitting in court what the whole world knows outside of court will endanger us all,” he added.

Such invocations of the privilege provide evidence to judge the Obama administration’s claims of government openness, and the Department of Justice’s new policies on the privilege. As Egelko commented, “We don’t know everything about the review process but can judge it by its results.”

Egelko recognizes that the invocation prevents the public from learning some information and that when a case is successfully dismissed, the flow of public information often ceases. But he does not think that the privilege has interfered with the ability of journalists to report on the underlying stories.Using warrantless surveillance cases as an example, Egelko said the government’s invocation of the privilege may pose a barrier for the plaintiffs, “but I think we’ve been able to explain to the readers what occurred in those cases.”

Johnson agrees that reporters have still been able to get necessary information to the public, despite the constraints. She says the reporting on the subject matter that is at the center of these cases is reflective of the larger context during the last decade in which information about controversial government programs has come to light through reporters’ investigations, more so than through official channels or lawsuits. “Reporters have been the first on the scene,” Johnson said. “It’s just reporters doing their job.”