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The state secrets privilege keeps some claims from ever being heard From the Summer 2006 issue of The News Media…

The state secrets privilege keeps some claims from ever being heard

From the Summer 2006 issue of The News Media & The Law, page 32.

By Susan Burgess

Khaled el-Masri thinks he deserves $75,000 from the U.S. government for what he alleges was five months of beatings, sodomy and imprisonment in the “Salt Pit,” a CIA-run facility in Afghanistan.

U.S. District Judge T.S. Ellis agrees el-Masri should be compensated if his allegations are true. But Judge Ellis, of the U.S. District Court in Alexandria, Va., dismissed el-Masri’s case against the government in May, ruling that further litigation would jeopardize national security. Judge Ellis did not consider the validity of the allegations, but ruled that the government properly sought to dismiss the case under the state secrets privilege.

“[I]f El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy,” Ellis wrote. “Yet it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.”

El-Masri is just one of dozens of plaintiffs who have lost their day in court because the government invoked the state secrets privilege to withhold information needed to prove their cases.

Since the U.S. Supreme Court recognized the privilege in 1953 in U.S. v. Reynolds, the government has invoked the privilege at least 81 times in cases involving a variety of claims, including patent infringement, race discrimination, libel and manufacturing defects, according to research conducted by The Reporters Committee for Freedom of the Press. In 62 cases, the government was a party to the litigation, but in 19 cases, the government invoked the privilege to withhold documents or testimony requested in lawsuits to which the government was not a party.

It is difficult to quantify beyond 81 the precise number of times the privilege has been asserted after Reynolds since some cases remain secret or unreported, but research of reported cases reveals that the privilege has been invoked in 18 cases since Sept. 11, 2001. (An earlier report in the Fall 2005 News Media & The Law revealed lower figures for invocation of the privilege, both before and after Sept. 11, 2001. That report was based on an independent report that was later retracted and amended.)

Among the secret or unreported cases are Horn v. Huddle, in which a former agent with the Drug Enforcement Agency alleged unlawful retaliation. Although the case was sealed by agreement of all parties, leaks to the press, including of a redacted copy of the district court’s 2004 dismissal of the case under the state secrets privilege, resulted in coverage. Despite that, the case remains sealed.

And in Sterling v. Tenet, a case concerning a CIA employee’s claims of race discrimination, Judge Allen G. Schwartz’s decision — rejecting the government’s argument that state secrets warranted dismissal of the case — apparently remains sealed, more than three years after being entered in January 2003.

In 28 of the 40 cases where a court has been asked to dismiss a case, claim or party because litigating would reveal state secrets, courts have complied. Late in July, however, Chief U.S. District Judge Vaughn R. Walker in San Francisco ruled that state secrets would not be jeopardized if a lawsuit against AT&T goes forward. The privilege is likely to be invoked in the next year as similar lawsuits over the National Security Agency’s domestic eavesdropping program progress through the courts.

The state secrets privilege has been used in at least 10 of the 13 federal appellate circuits, including the U.S. Court of Appeals in Washington, D.C., and the U.S. Court of Appeals for the Federal Circuit. The privilege does not appear to have been invoked in federal courts in either the First Circuit (which includes Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island), the Tenth Circuit (Wyoming, Utah, Colorado, Kansas, New Mexico and Oklahoma) or the Eleventh Circuit (Florida, Alabama and Georgia).

The U.S. Supreme Court recognized the state secrets privilege in1953, ruling that the government correctly withheld for national security reasons records about a B-29 bomber crash in 1948 in rural Georgia. The official report about the crash could not be given to the widows of three civilians who died in the crash “without seriously hampering national security, flying safety and the development of highly technical and secret military operations” because “the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force,” according to an Air Force court filing in the case.

Chief Justice Fred Vinson, writing for the Court, said that the privilege could not “be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.”

Since Reynolds, the privilege has been invoked in at least 19 cases where the government is not a party. In Robinson v. City of Philadelphia, for example, former city employee Stacey Robinson sued the city in August 2004, claiming her supervisors retaliated against her for cooperating with a federal criminal investigation of city government corruption.

When lawyers for the city scheduled depositions with two FBI agents Robinson claimed to have cooperated with, the U.S. Attorneys Office for the Eastern District of Pennsylvania in Philadelphia asked the city to cancel the depositions because the information sought would jeopardize an ongoing investigation and could be protected by one of several privileges, including the state secrets privilege. The city asked the U.S. District Court in Philadelphia to compel Robinson to answer its questions about her conversations with the two agents, but the court refused, explaining that it could not compel testimony “where any of these privileges are raised.”

The case illustrates that the government does not always assert the privilege only in court documents. The government has not formally intervened in the Robinson case and has filed no motions asserting that the state secrets privilege protects particular information that the parties seek.

The U.S. Attorney’s Office acknowledged that the letter in Robinson was not unusual. DOJ spokesman Charles Miller declined to comment on whether such letters are typical.

A privilege apart

Like other types of evidentiary privileges, such as the lawyer-client or priest-penitent privilege, the state secrets privilege withholds information on the theory that it is in the public interest to do so, even if a party cannot prove his or her case without the information.

The state secrets privilege is unique in that it is held by the executive branch, which brings up issues of constitutional law and separation of powers because proper invocation by the executive branch ultimately deprives the judicial branch of the ability to review the executive’s actions.

Critics argue that the privilege impairs the public’s ability to hold the executive branch accountable. They also note its potential for abuse, arguing that it lets the government conceal information at its whim, allowing officials to shield embarrassing or illegal conduct, rather than truly sensitive information such as weapons development or intelligence strategies.

“[T]he incentive on the part of administrators is to use the privilege to avoid embarrassment, handicap political enemies, and to prevent criminal investigation of administrative action,” wrote University of Texas at El Paso Professors William G. Weaver and Robert M. Pallitto in an article about use of the state secrets privilege. “[I]f the privilege protects the executive and agencies from investigation and judicial power, the privilege may have the effect of encouraging or tempting agencies to engage in illegal activity.” Weaver and Pallitto’s article, “State Secrets and Executive Power” was published in the Spring 2005 issue of Political Science Quarterly.

Such critics point to U.S. v. Reynolds to illustrate that the government misuses secrecy to cover up its own negligence. In 2000, when Air Force reports about the 1948 accident that led to the Reynolds suit were declassified and released, attorneys for family members of the deceased civilians found no information about the secret electronic equipment that the Air Force had cited in withholding the reports. The reports did, however, contain information about the aircraft’s poor condition.

A widow of one of the plane crash victims sued the government, claiming that the cover-up in the Reynolds case constituted a fraud upon the court, but the U.S. Court of Appeals in Philadelphia (3rd Cir.) disagreed, and the U.S. Supreme Court declined to review the decision.

The lack of public oversight that results when the privilege is invoked troubles plaintiffs’ attorneys who think the courts are failing to examine the government as rigorously as directed by the Reynolds decision.

“The courts have been very much ignoring the promulgation of the instructions by the Supreme Court,” said Mark Zaid, a Washington lawyer who has represented many plaintiffs in state secrets cases. “[T]he judicial branch is at a weak point with respect to the privilege and the executive branch is exploiting the judicial unwillingness or inability to deal with the privilege in a substantive fashion.”

Ann Beeson, the associate legal director of the American Civil Liberties Union and the lead attorney on an ACLU suit challenging the government’s warrantless wiretapping program, agrees. “I think courts have been frightened by and too deferential to the government’s claim that national security would be harmed if particular cases continued and have undermined their role in performing a check on government power. The government’s broad view of the privilege completely eliminates checks and balances.”


Supporters of the privilege said that internal checks and balances protect against misuse. “People who suggest this is lightly or casually done have no idea what they’re talking about,” said a former Bush administration official who requested anonymity because he was not authorized to speak for the administration. “The privilege has to be personally invoked by the agency head responsible, supported by an affidavit that he personally reviewed the documents at issue. That requires several levels of review. Since you generally need the affidavit of a senior intelligence official, the attorney general is routinely brought into these discussions. The assistant attorney general would want his boss’ approval before approaching someone like [U.S. Director of National Intelligence John D.] Negroponte for his signature. It’s enormously cumbersome for the government to assert.”

Former executive branch attorneys from both the Bush and Clinton administrations also note that the privilege — and its ability to completely disembowel a case — is not excessive because it helps prevent important secrets from being revealed in cases where protective orders or sealed proceedings would not suffice.

Even when all precautions are taken, mistakes happen that can let slip valuable information. For example, during an oral argument in the Sterling case, Judge Gerald Bruce Lee of the U.S. District Court in Alexandria, Va., accidentally identified a CIA agent by her last name.

He stopped himself midsentence and apologized to attorneys for inadvertently disclosing the name of a covert agent.

Plaintiffs’ attorneys also worry about how the increase in the amount of information agencies label secret or classified amplifies the effect of the state secrets privilege. “With the government reclassifying documents that weren’t classified before, you don’t know that what they’re saying is secret,” said Washington, D.C., attorney Janine Brookner, referring to the CIA and other federal agencies’ secret reclassification of more than 55,000 pages of records at the National Archives and Records Administration.

Brookner, who represents former DEA agent Richard Horn and has represented many federal employees in suits against the government, said that the government “submits documents ex parte so that the other party, even if they have top secret security clearance, doesn’t get the documents. It’s difficult to fight the government’s assertion if you don’t know what they’re saying.”

Former FBI translator and whistle­blower Sibel Edmonds, whose case against the FBI over her firing was dismissed because of state secrets, has experienced the problem of over-classification first-hand. When she challenged the Justice Depart­ment’s refusal to give her documents under the Freedom of Information Act in a separate suit, the government again claimed in part that the documents contained state secrets, despite the fact that the documents she sought included the transcript of an interview the department had conducted of her in the presence of her attorneys who lacked security clearances.

“None of the questions they asked me [in the interview] involved classified information,” Edmonds said, yet the U.S. District Court in Washington, D.C. did not order the FBI to release the interview. “One of the questions was ‘when and where were you born?’ That means my passport is a top secret document.”

Government sources, however, claim that overclassification is not an issue. “The bottom line is that when courts review claims of the privilege, they make an independent assessment,” the former administration official said. “Because the courts examine it, the DOJ examines it too. They don’t want to bring it up unless it’s going to be upheld. The courts are the second and ultimate check. Any situation where they have upheld it is not a function of overclassification.”

Critics disagree. Jameel Jaffer, an ACLU deputy director and one of the attorneys working on challenging the government’s domestic surveillance program, said that secrecy surrounding national security programs is “unnecessary and motivated not by national security but political concerns. I don’t think any reasonable person could conclude that disclosure of generic information about the existence of national security programs could jeopardize national security.”

What critics point to as overclass­ification may be in part due to intelligence agencies’ subscription to what is known as the “mosaic theory.” Under this theory, the executive branch protects data that alone may appear innocuous, but that like the “construction of a mosaic,” could be fitted together by terrorists to form a “bigger picture” of the investigation. Several courts have upheld the government’s assertion of the state secrets privilege on this theory.

Losing one’s day in court

For plaintiffs, the state secrets privilege frequently means never being able to argue their case in court — or win compensation. Beeson, who represents el-Masri and filed a brief to the U.S. Supreme Court on behalf of Edmonds, said that in state secrets cases, “the government has given no consideration to remedying the plaintiffs.

“I’ve never heard of a case where the government has been supportive of some other remedy through Congress, through a private bill or other means. I don’t think that it’s even remotely likely that Congress will do anything to help this man [El-Masri]. There’s no recourse for him.”

Congress has the authority to pass so-called private bills to benefit people by granting them money or relieving them from a legal obligation.

No one introduced a private bill for Edmonds, despite that an FBI internal investigation confirmed her allegations that a coworker had unreported contacts with a foreign official whose communications he was charged with translating.

Tom Devine, legal director of the Government Accountability Project, agreed that there’s little recourse.

“We’ve tried [to get private bills] for numerous whistleblowers, but never got anywhere,” he said. “In our experience that’s always been like the pot of gold at rainbow’s end.”

Some government officials recognize the privilege’s effect on government whistleblowers. Rep. Christopher Shays (R-Conn.) introduced a bill that would limit its use in such suits. “National security whistleblowers tell us when things go wrong,” Shays said in a February House Government Reform Committee hearing. “But those with whom we trust the nation’s secrets are too often treated like second-class citizens when it comes to asserting their rights to speak truth to power.”

In addition to losing one’s day in court, invocation of the state secrets privilege may also mean erasing an entire legal doctrine for a particular type of plaintiff — namely intelligence agency employees.

U.S. District Court Judge Gerald Bruce Lee in Alexandria, Va., concluded in Sterling v. Tenet that Jeffrey Sterling could not bring a race discrimination case against the CIA because it would have required deposing covert operatives and introducing evidence about CIA operatives’ job responsibilities. This theory could potentially apply to other cases in which CIA agents allege unlawful employment discrimination.

Zaid, who represents Sterling, said that the privilege’s cost to plaintiffs could be relieved by creating an alternative system for handling sensitive civil cases. “Congress needs to either create a new federal court like [the Foreign Intelligence Surveillance Court], where there’s a rotating base of judges appointed to hear classified proceedings in these cases . . . or give jurisdiction to the administrative agencies, like the Equal Employment Opportunity Commission, to hear these cases. At least the person would have a chance to have their day in court.”

Brookner notes that in the criminal context, procedures exist to allow cases to go forward without jeopardizing national security information. The Classified Information Protection Act (CIPA) dictates the procedures litigants must use in these cases, but no judges have agreed to use CIPA procedures for the civil context.

Without oversight, it is difficult to determine the privilege’s cost to the public. “Government secrecy prevents reporters from reporting on government programs, Jaffer said. “Because the government invokes the privilege over and over, we have to start asking how that secrecy is affecting the public’s ability to evaluate executive branch activity.”