State Secrets Privilege

The State Secrets Privilege is an evidentiary rule created by United States legal precedent. The court is asked to exclude evidence from a legal case based solely on an affidavit submitted by the government stating court proceedings might disclose sensitive information which might endanger national security. [http://www.lclark.edu/org/lclr/objects/LCB_11_1_Lyons.pdf The State Secrets Privilege: Expanding Its Scope Through Government Misuse] by Carrie Newton Lyons, the Lewis & Clark Law Review, published by Lewis & Clark Law School, Volume 11 / Number 1 / Spring 2007.] [http://jurist.law.pitt.edu/forumy/2006/05/state-secrets-privilege-and-executive.php The State Secrets Privilege and Executive Misconduct] by Shayana Kadidal, one of the lead attorneys on the Center for Constitutional Rights, JURIST, May 30, 2006] [http://jurist.law.pitt.edu/forumy/2007/03/dangerous-discretion-state-secrets-and.php Dangerous Discretion: State Secrets and the El-Masri Rendition Case] by Aziz Huq, Director of the Liberty and National Security Project at the Brennan Center for Justice at NYU School of Law, JURIST, March 12, 2007] The Suit Challenging the NSA's Warrantless Wiretapping Can Proceed, Despite the State Secrets Privilege
* [http://writ.lp.findlaw.com/hilden/20060815.html The Suit Challenging the NSA's Warrantless Wiretapping Can Proceed, Despite the State Secrets Privilege: Why The Judge Made the Right Call] By JULIE HILDEN, FIndLaw, August 15, 2006
* [http://writ.lp.findlaw.com/hilden/20060823.html Examining Two Recent Rulings Allowing Suits Against the NSA's Warrantless Wiretapping To Proceed, Despite the State Secrets Privilege: Part Two in a Series] By JULIE HILDEN, FindLaw, August 23, 2006 ] [http://glenngreenwald.blogspot.com/2006/04/building-secrecy-wall-higher-and.html Building the Secrecy Wall higher and higher] by Glenn Greenwald, Unclaimed Territory, April 29, 2006] [http://www.truthout.org/cgi-bin/artman/exec/view.cgi/37/9393 Bush Wielding Secrecy Privilege to End Suits] By Andrew Zajac, The Chicago Tribune, March 3, 2005 ]

Following a claim of "State Secrets Privilege", the court rarely conducts an in camera examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion. The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.

Function of the State Secrets Privilege

How the State Secrets Privilege Works

The purpose of the state secrets privilege is to prevent courts from revealing state secrets in the course of civil litigation (in criminal cases, the Classified Information Procedures Act serves the same purpose). The government may intervene in any civil suit, including when it is not a party to the litigation, to ask the court to exclude state secrets evidence. While the courts may examine such evidence closely, in practice they generally defer to the Executive Branch. Once the court has agreed that evidence is subject to the state secrets privilege, it is excluded from the litigation. Often, as a practical matter, the plaintiff cannot continue the suit without the privileged information, and drops the case. Recently, courts have been more inclined to dismiss cases outright, if the subject matter of the case is a state secret.

Distinguished From Other Legal Doctrines

The state secrets privilege is often confused with several other related legal doctrines: the principle of non-justiciability in certain cases involving state secrets (the so-called "Totten Rule"); certain prohibitions on the publication of classified information (as in the Pentagon Papers case); and the use of classified information in criminal cases (governed by the Classified Information Procedures Act).

History

Origins

The doctrine was effectively imported from British law which has a similar privilege. It is debatable whether the State Secrets Privilege is based upon the President’s powers as Commander-in-Chief and leader of foreign affairs (as suggested in "United States v. Nixon") or derived from the idea of separation of powers (as suggested in "United States v. Reynolds") It seems that the US privilege “has its initial roots in Aaron Burr’s trial for treason.” In this case, it was alleged that a letter from General Wilkinson to President Thomas Jefferson might contain state secrets and could therefore not be divulged without risk to national security.

upreme Court recognition in U.S. v. Reynolds

The privilege was first officially recognized by the U.S. Supreme Court in a 1953 decision, "United States v. Reynolds" (345 U.S. 1). A military airplane, a B-29 Superfortress bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. [http://writ.news.findlaw.com/dean/20060616.html ACLU v. National Security Agency: Why the "State Secrets Privilege" Shouldn't Stop the Lawsuit Challenging Warrantless Telephone Surveillance of Americans] By JOHN W. DEAN, FindLaw, June 16, 2006] [http://www.slate.com/id/2142155/ Secret GuardingThe new secrecy doctrine so secret you don't even know about it] By Henry Lanman, Slate, May 22, 2006,] The court held that only the government can claim or waive the privilege, and it “is not to be lightly invoked”, and last there “must be a formal claim of privilege, lodged by the head of thedepartment which has control over the matter, after actual personalconsideration by that officer.” The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive.

As a footnote to the founding case establishing the privilege, in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case. [Stephens, Hampton. [http://www.fas.org/sgp/news/2003/03/iaf031403.html Supreme Court Filing claims Air Force, government fraud in 1953 case: Case could affect 'state secrets' privilege] "Inside the Air Force" March 14, 2003. Retrieved May 3, 2007.]

Despite this ruling, a case might still be subject to judicial review since the privilege was intended to prevent certain, but not all, information to be precluded.

Recent Use

According to John Dean:

While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases."

While Henry Lanman reports in Slate:

"... the Reporters Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11." [http://www.inthesetimes.com/article/2730/ Rechecking the Balance of Powers The Bush administration has finally been rebuked for its repeated efforts to evade judicial review] By Glenn Greenwald, In These Times, July 21, 2006]

He continues to cite two political science professors at the University of Texas-El Paso who concluded that

"courts have examined the documents' underlying claims of state secrecy fewer than one-third of the times it has been invoked. And, ..., courts have only actually rejected the assertion of the privilege four times since 1953."

Following the September 11, 2001 attacks, the privilege is increasingly used to dismiss entire court cases, instead of only withholding the sensitive information from a case. Also in 2001, George W. Bush issued Executive Order 13233 extending the accessibility of the State Secrets Privilege to also allow "former" Presidents, their designated representatives, or representatives designated by their families, to invoke it to bar records from their tenure.

An article in the NYT, in August 2007, on a lawsuit involving Society for Worldwide Interbank Financial Telecommunication concludes that it would seem that the unprecedented frequency with which the Bush administration invoked and invokes this principle has made judges more skeptical and willing to ask the government to validate its claims. In the words of Tom Blanton, director of the National Security Archive at George Washington University

"What seems clear is that until a year or two ago, the judges rarely even questioned it when the government raised the 'state secrets' claim. It was a neutron bomb - no plaintiffs left standing. But we're now seeing that judges are starting to actually look behind the government's secrecy claims and see what's really there." [ [http://www.truthout.org/docs_2006/083107B.shtml US Cites "Secrets" Privilege as It Tries to Stop Suit on Banking Records] By Eric Lichtblau, The New York Times, August 31, 2007]

Criticism

Since 2001, there has been mounting criticism of the state secrets privilege. Such criticism generally falls into four categories:

Weak External Validation of Executive Assertion of Privilege

Many commentators have expressed concern that the courts never effectively scrutinize executive claims of privilege. Lacking independent national security expertise, judges frequently defer to the judgment of the executive and never subject executive claims to meaningful scrutiny.

Executive Abuse of the Privilege to Conceal Embarrassing Facts

Commentators have suggested that the State Secrets Privilege might be used as often to prevent disclosure of embarrassing facts as to protect legitimate secrets. [ [http://www.villagevoice.com/news/0625,hentoff,73574,6.html Congress and Judges Gagged Arlen Specter and a CIA torture victim know - Only the Oval Office decides what the law is] by Nat Hentoff, Village Voice, June 19th, 2006] [http://www.villagevoice.com/news/0624,hentoff,73492,6.html Closing Our Courts Crying 'state secrets,' the administration seals the courts to avoid scrutiny] by Nat Hentoff, Village Voice, June 9th, 2006] Or, in the words of Professors William G. Weaver and Robert M. Pallitto in an article in the Political Science Quarterly:

" [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." [http://www.rcfp.org/news/mag/30-3/prr-caseswit.html Cases without courts - The state secrets privilege keeps some claims from ever being heard] By Susan Burgess, The News Media & The Law, Summer 2006 (Vol. 30, No. 3), Page 32 ] [ [http://oversight.house.gov/Documents/20070213122925-44818.pdf House Committee on Oversight and Government Reform Whistleblower Protection Enhancement Act of 2007] Testimony of William G. Weaver, J.D., Ph.D. Senior Advisor, National Security Whistleblowers Coalition andAssociate Professor University of Texas at El Paso, Inst. for Policy and Econ. Development and Dept. of Political Science, February 13, 2007]

In several prominent cases, the evidence that the government successfully excluded was later revealed to contain no state secrets. i.e. "United States v. Reynolds", "Sterling v. Tenet", "Edmonds v. Department of Justice" and the "Pentagon Papers".

Expansion of the State Secrets Privilege Into a Justiciability Doctrine

Some academics and practitioners have criticized the expansion of the state secrets privilege from an evidentiary privilege (designed to exclude certain pieces of evidence) to a justiciability doctrine (designed to exclude entire lawsuits). Under its original formulation, the state secrets privilege was meant only to exclude a very narrow class of evidence whose revelation would harm national security. However, in a large percentage of recent cases, courts have gone a step further, dismissing entire cases in which the government asserts the privilege, in essence converting an evidentiary rule into a justiciability rule. The government response has been that in certain cases, the subject of the case is itself privileged. In these cases, the government argues, there is no plausible way to respond to a complaint without revealing state secrets.

Elimination of Judicial Check on Executive Power

Glenn Greenwald alleges that the Bush administration attempts to expand executive power, as evidenced by the unitary executive theory propagated by John Yoo. The theory suggests that the President, as Commander-in-Chief, cannot be bound by Congress or any law, national or international. By invoking the State Secrets privilege in cases involving actions taken in the war on terror (i.e. extraordinary rendition, allegations of torture, allegedly violating the Foreign Intelligence Surveillance Act) [http://www.fpif.org/fpiftxt/3774 Secrecy and Foreign Policy] by Robert Pallitto, Foreign Policy In Focus (FPIF), December 8, 2006] Greenwald opines the administration tries to evade judicial review of these claims of exceptional war powers. In effect, this is preventing a judicial ruling determining whether there is a legal basis for such expansive executive power. [ [http://glenngreenwald.blogspot.com/2006/05/snapshots-of-us-under-bush.html Snapshots of the U.S. under the Bush administration] by Glenn Greenwald, Unclaimed Territory, May 23, 2006] With that in mind, applying this privilege makes impeachment the only possible means left for Congress to exercise their duty to uphold the checks and balances constitutionally intended to prevent abuse of power.

Calls for Reform

In recent years, a number of commentators have called for legislative reforms to the state secrets privilege. [Florence, Justin and Gerke, Matthew: "State Your Secrets: The smart way around telecom immunity." http://www.slate.com/id/2177962/] ["State Secrets and the Limits of National Security Legislation" by Robert Chesney. George Washington Law Review (2007).] ["The State Secrets Privilege: Expanding Its Scope Through Government Misuse" by Carrie Newton Lyons, 11 Lewis & Clark L. Rev. 99 (2007).] These reforms center around several ideas:

1. Requiring judges to review each piece of evidence that the executive claims is subject to the privilege. [Report on Reforming the State Secrets Privilege, American Bar Association, 2007.] [Florence, Justin and Gerke, Matthew: "State Your Secrets: The smart way around telecom immunity." http://www.slate.com/id/2177962/] ["State Your Secrets" by Lou Fisher. Legal Times, 2006.]
2. Requiring the executive to craft alternative evidence that is not subject to the privilege, for the opposing party to use in place of the original, privileged evidence. [Report on Reforming the State Secrets Privilege, American Bar Association, 2007.] Such substitute evidence should only be required when it is possible to do so without harming national security.
3. Prohibiting courts from dismissing claims on the basis of the state secrets privilege until after they have reviewed all available evidence.
4. Permitting the court to appoint an outside expert to scrutinize the evidence for national security content. ["State Secrets and the Limits of National Security Legislation" by Robert Chesney. George Washington Law Review (2007).]
5. Excluding illegal government action from the definition of "state secrets," or otherwise allowing the court to address the legality (instead of just the secrecy) of government conduct. This would prevent the government from using the state secrets privilege to conceal its illegal conduct. ["State Secrets and the Limits of National Security Legislation" by Robert Chesney. George Washington Law Review (2007).]

On January 22, 2008, Senators Edward Kennedy and Arlen Specter introduced S. 2533, the State Secrets Protection Act. [cite web
url=http://www.fas.org/irp/congress/2008_cr/statesec.html
title=Introduction of the State Secrets Protection Act
publisher=Federation of American Scientists
date=2008-01-22
accessdate=2008-02-08]

Court Cases

United States v. Reynolds

In "United States v. Reynolds" (1953), the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The Supreme Court ruled that the executive branch could bar evidence from the court which they had deemed a threat to national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have alleged government misuse of secrecy in the landmark case.

Richard Horn

Former DEA agent Richard Horn brought a suit against the CIA for bugging his home. The case was dismissed because of the privilege.

Notra Trulock

In February 2002 it was invoked in the case of Notra Trulock, who launched a defamation suit against Los Alamos scientist Wen Ho Lee, charged with stealing nuclear secrets; President Bush stated that national security would be compromised if Trulock were allowed to seek damages from Lee; though it resulted in the case being dismissed, another suit was launched directly attacking then-FBI Director Louis Freeh for interfering and falsely invoking the State Secrets Privilege.

ibel Edmonds

The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower.

Thomas Burnett

The privilege was invoked in Thomas Burnett vs. Al Barka Investment & Development Corporation (Civil No. 04ms203) a motion to quash a subpoena for the testimony of Sibel Edmonds. The government's motion to quash based on state secrets privilege was granted in part.

terling v. Tenet

Jeffrey Sterling was a black CIA agent who started a racial discrimination suit. It was thrown out on account of this privilege.

Nira Schwartz

The privilege was invoked in Schwartz vs. TRW (Civil No. 96-3065, Central District, Cal) a Qui-Tam claim by Schwartz. Intervention and assertion of the state secrets privilege, by the government, resulted in case dismissal.

Crater Corporation

The privilege was invoked in the United States Court of Appeals for the Federal Circuit case of "Crater Corporation vs. Lucent Technologies Inc." and AT&T Company, ( [http://fedcir.gov/opinions/04-1349.pdf "Crater Corp. v. Lucent Technologies"] , September 7, 2005). Crater was prevented from proceeding with discovery in its patent infringement case (U.S. Patent No. 5,286,129) by the United States' assertion that discovery could cause "extremely grave damage to national security". The infringement case centered on WetMate underwater fiber optic coupling devices beneath the sea.

ACLU vs. NSA/CIA

On May 26, 2006, the U.S. Justice Department filed a motion to dismiss the [http://www.aclu.org/safefree/nsaspying/index.html ACLU's lawsuit] against the NSA by invoking the state secrets privilege.On July 26, 2006, the case was dismissed. In a different case in Michigan, brought by the [http://www.aclu.org/safefree/nsaspying/26489prs20060817.html ACLU against the NSA] on behalf of various scholars, journalists, attorneys, and national non-profit organizations, [http://www.daahp.wayne.edu/biographiesDisplay.asp?id=64 Judge Anna Diggs Taylor] [http://www.aclu.org/images/nsaspying/asset_upload_file863_26477.pdf ruled] on August 17, 2006, that the program was unconstitutional and should be halted. She upheld the doctrine, but ruled that the government's public statements concerning the operation were admissible and constituted sufficient proof for the case to continue without any privileged evidence or discovery.

Center for Constitutional Rights et al v. Bush et al

On May 27, 2006 the Justice Department moved to preempt the Center for Constitutional Rights (CCR) [http://www.ccr-ny.org/v2/reports/report.asp?ObjID=YmERLgnGvJ&Content=777 challenge] to warrantless domestic surveillance by invoking the state secrets privilege. The Bush Administration is arguing that CCR's case could reveal secrets regarding U.S. national security, and thus the presiding judge must dismiss it without reviewing the evidence.

AT&T and NSA Wire-Tap case

In April 2006, the Bush administration [http://news.com.com/2061-10789_3-6066688.html?part=rss&tag=6066688&subj=news took initial steps] to use the state secrets rule to block a lawsuit against AT&T and the National Security Agency brought by the Electronic Frontier Foundation. The EFF alleged that the government has secret computer rooms conducting broad, illegal surveillance of U.S. citizens. Testifying at a January 29, 2008 House Judiciary Committee hearing on reform of the state secrets privilege, EFF attorney Kevin Bankston contended that the administration's interpretation of the privilege was overly broad, and failed to properly consider the evidentiary procedures provided for by Section 1806(f) of the Foreign Intelligence Surveillance Act. [cite web
url = http://www.eff.org/files/EFF_HJC_SSP_written_testimony_Final.pdf
title = Statement of Kevin S. Bankston, Senior Staff Attorney Electronic Frontier Foundation
publisher = Oversight Hearing on Reform of the State Secrets Privilege by the U.S. House of Representatives Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties
date =2008-01-29
accessdate=2008-02-08]

Khalid El-Masri

In May 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. [http://www.aclu.org/safefree/torture/25606prs20060519.html] . On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. [http://www.nytimes.com/packages/pdf/world/20070303_MASRI.pdf] On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand. [cite news |first=Linda |last=Greenhouse |title=Supreme Court Refuses to Hear Torture Appeal |url=http://www.nytimes.com/2007/10/10/washington/10scotus.html?ref=us |publisher=The New York Times |date=2007-10-10 |accessdate=2007-10-10 ]

Maher Arar

The privilege was invoked against a case where Maher Arar, a wrongfully-accused and tortured victim, sought to sue Attorney General John Ashcroft for his role in deporting Arar to Syria to face torture and extract false confessions. It was formally invoked by Deputy Attorney General James B. Comey in legal papers filed in the Eastern District of New York. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.

Jane and John Doe

On January 4, 2007 District Court Judge Laura Taylor Swain ordered the dismissal of Jane Doe et al. v. CIA, 05 Civ. 7939 based on the state secrets privilege. Jane Doe and her children sued the CIA for money damages after her husband's covert employment with the CIA was "terminated immediately for unspecified reasons". [http://www.fas.org/sgp/jud/statesec/doe010407.pdf] .

Quotes

*"Because it is so powerful and can trample legitimate claims against the government, the state secrets privilege is not to be lightly invoked" - ("United States v. Reynolds", 345 U.S. 1, 7 (1953)) [http://www.fas.org/sgp/news/secrecy/2002/04/042302.html]

*"The state secrets privilege is a common law evidentiary rule that allows the government to withhold information from discovery when disclosure would be inimical to national security." - "Zuckerbraun v. General Dynamics Corp.", 935 F.2d 544, 546 (2d Cir. 1991).

ee also

*Espionage Act of 1917
*Executive privilege
*Extraordinary rendition
*Mosaic theory
*Unitary executive
*Whistleblower

External links

* [http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/fisher1206.htm IN THE NAME OF NATIONAL SECURITY: UNCHECKED PRESIDENTIAL POWER AND THE REYNOLDS CASE] by Louis Fisher. Lawrence: University Press of Kansas, 2006. 256pp. Cloth. $34.95. ISBN 0700614648.
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=946676 State Secrets and the Limits of National Security Litigation] ROBERT CHESNEY, Wake Forest University - School of Law
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=978808 The State Secrets Privilege and Separation of Powers] AMANDA FROST, American University - Washington College of Law
* [http://www.fas.org/sgp/jud/statesec/index.html Selected Case Files Involving "State Secrets"] Project on Government Secrecy, Federation of American Scientists

References