DCIA Goss Invokes State Secrets Privilege

Director of Central Intelligence Agency Porter J. Goss invoked the state secrets privilege last month to block litigation filed against the CIA and another U.S. Government agency.

The likely effect is to terminate the case, for reasons that DCIA Goss said cannot be explained on the public record.

“After deliberation and personal consideration, I have determined that the bases for my assertion of the state secrets privilege cannot be filed on the public court record, or in any sealed filing accessible to the plaintiffs or their attorneys, without revealing the very information that I seek to protect,” Director Goss stated in an unclassified March 16 Declaration (pdf).

Little is known about the case. Even the identity of one of the government agencies that is a defendant in the suit has been withheld from disclosure.

What is known is that last September, attorney Mark S. Zaid filed a lawsuit on behalf of an anonymous plaintiff, Jane Doe, and three minors, alleging violations of the Privacy Act, the Administrative Procedures Act, and the U.S. Constitution, in this country and abroad. See the severely redacted complaint (pdf).

The government defended its assertion of the state secrets privilege and moved for dismissal of the case in a March 29, 2006 memorandum of law (pdf).

“Use of the state secrets privilege in courts has grown significantly over the last twenty-five years,” wrote William G. Weaver and Robert M. Pallitto in a study of the privilege in Political Science Quarterly last year (“State Secrets and Executive Power,” PSQ, volume 120, no. 1, Spring 2005).

“Recent use of the state secrets privilege shows a tendency on the part of the executive branch to expand the privilege to cover a wide variety of contexts,” they found.