State Secrets Privilege Used Improperly, Court is Told

When the government intervened in a private lawsuit to assert the state secrets privilege and to seek dismissal of the entire proceeding (Secrecy News, September 15), it acted improperly and misused the state secrets privilege, the attorney for the plaintiff in the case told the Court yesterday.

“The Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment,” wrote Abbe D. Lowell, the plaintiff’s attorney in Restis v. United Against Nuclear Iran.

Specifically, by refusing to identify the subject or scope of the privileged information, or even the agency that was asserting the privilege, the government has “violate[d] any semblance of due process” and “prevent[ed] the opposing party from understanding the claim in any fashion,” he wrote.

The Government says that “the identity of the concerned federal agency, the particular information at issue, and the bases for the assertion of the state secrets privilege cannot be disclosed without revealing classified and privileged matters,” according to a memorandum filed September 12.

But Mr. Lowell asked the Court to order the Government to file a public declaration in support of its privilege claim so that the Plaintiff could offer a substantive rebuttal.

“In the typical state secrets case, the Government will simultaneously file both a sealed ex parte declaration and a detailed public declaration,” Mr. Lowell noted. “The Government has not offered any explanation as to why it cannot do so here. [In other state secrets cases,] there always is some way for the Government to identify the nature of its privilege claim without disclosing the privileged information itself.”

“Absent further disclosure from the Government, the Plaintiffs cannot meaningfully respond to the Government’s claim. The Plaintiffs cannot test whether the supposed evidence at issue is a state secret, and they also cannot test the relevance of that evidence to its case.”

“In every other case of which we are aware, the Government made sufficient public disclosure of the nature of the state secrets and its reasons for seeking dismissal to allow those claims to be tested, and all Plaintiffs ask is that the Government do so here, so that Plaintiffs can then respond adequately to the actual motions filed,” Mr. Lowell wrote.

“The Plaintiffs plan to advance their claims without using any state secrets,” he noted, “and it is not clear how state secrets could be relevant to the defense.”