“SEALED v. SEALED”: How Courts Confront State Secrets

The government’s increasing use of the “state secrets privilege” to resist civil litigation on national security matters has often been met by courts with uncritical, even abject deference to the executive agencies that invoke the privilege. But another, more assertive response is possible.

“The state secrets privilege is absolute,” wrote Judge Royce C. Lamberth categorically in a newly disclosed decision (pdf) from July 2004.

In that case, former DEA agent Richard Horn alleged that his phone had been illegally wiretapped by the U.S. government when he served in Myanmar (Burma) in 1993. The government asserted the state secrets privilege and moved for dismissal.

Plaintiff Horn then proposed that the provisions of the Classified Information Procedures Act (CIPA) be adapted to permit the secure adjudication of classified information in his lawsuit, as is done in certain criminal trials such as espionage cases.

But, Judge Lamberth reasoned, “If the Court adopted CIPA,… the [state secrets] privilege would not be absolute.” So he simply dismissed the case.

Horn’s lawsuit — Horn v. Huddle, D.C. District Case No. 94-1756 — is sealed. It does not appear in the public docket of the D.C. District Courthouse. Instead, it is tagged “SEALED v. SEALED” with the annotation “Case is not available to the public.”

But a redacted copy of Judge Lamberth’s July 28, 2004 order dismissing the case was obtained by Secrecy News.

A markedly different judicial response to a state secrets claim may be emerging in a current lawsuit brought by the Electronic Frontier Foundation alleging unlawful domestic surveillance.

Instead of simply granting “absolute” deference to the government whenever it asserts the state secrets privilege, the Court admitted that there are multiple interests at stake that must somehow be reconciled:

“How can the court minimize the conflict between plaintiffs’ right to litigate this case and the government’s duty to protect state secrets?” Judge Vaughan R. Walker asked the parties in a January 20 order (pdf).

“Allowing the executive branch to treat the privilege as an absolute bar to judicial review, as the Bush administration is attempting, would be profoundly unwise,” argued constitutional scholar Louis Fisher in a new op-ed. “It would let self-serving assertions by one of the litigants usurp the judge’s authority.” See “State Your Secrets” (pdf) by Louis Fisher, Legal Times, June 26 (reprinted with permission).

A critical view of the Bush Administration’s use of the state secrets privilege was presented in “The Bush Code of Secrecy” by Mark Follman, Salon, June 23.

Last March, the Central Intelligence Agency asserted (pdf) the state secrets privilege in a somewhat mysterious case called Jane Doe v. CIA, and moved for dismissal. Last week, Mark S. Zaid, the attorney for “Jane Doe,” asked the Court not to dismiss the case.

“The privilege has been used in this administration more than any other administration,” according to University of Texas-El Paso professor William Weaver.

“Depending on how you count it, it’s been asserted … between 19 and 21 times,” he told National Public Radio on June 19.