The plaintiff in a lawsuit challenging the use of the “no fly list” to bar a US citizen from boarding an aircraft said last week that he would introduce a leaked copy of the government’s Watchlisting Guidance “to show just how objectionable and evidence-free Defendants’ watch listing process is.”
The government said it did not acknowledge the authenticity of the leaked document, and that the case should be dismissed since the Attorney General had invoked the state secrets privilege concerning core issues that it raised.
The lawsuit was filed by the Council on American-Islamic Relations (CAIR) on behalf of Gulet Mohamed, who said his constitutional rights had been violated by placing him on the no fly list.
In May 2014, Attorney General Eric Holder filed a declaration asserting the state secrets privilege over documents and information that it said would be needed to litigate the case, and the government moved for dismissal of the entire matter.
Among other things, the Attorney General said that the state secrets privilege extended to the current Watchlisting Guidance that spells out the criteria and procedures for placing an individual on the no fly list.
“The Guidance sets forth, in detail, the Government’s comprehensive watchlist scheme related to the identification and placement of individuals in terrorism screening watchlists,” AG Holder wrote in his May 27, 2014 declaration asserting the privilege.
“If the Guidance were released, it would provide a clear roadmap to undermine the Government’s screening efforts, a key counterterrorism measure, and thus, its disclosure reasonably could be expected to cause significant harm to national security,” he wrote.
But then last month, the online publication The Intercept reported on the Watchlisting Guidance and published the document itself. (The Secret Government Rulebook for Labeling You a Terrorist by Jeremy Scahill and Ryan Devereaux, July 23.)
In an August 15 statement to the Court, the CAIR attorneys for Gulet Mohamed said that they would file a copy of the Guidance and another leaked document in a Notice this week.
“Plaintiff will argue that this document is relevant, not only to show just how objectionable and evidence-free Defendants’ watch listing process is, but also to how this Court handles Defendants’ state secrets privilege,” the attorneys wrote.
In the same August 15 statement, the government said it would not confirm that the documents to be filed by CAIR are authentic, or even that they had actually been leaked.
“Defendants do not acknowledge the authenticity of the purportedly leaked documents, and will respond to the proposed Notice in due course,” attorneys for the government stated.
While withholding confirmation, however, they have stopped short of affirmatively disputing that the documents are authentic.
The Gulet Mohamed case is believed to be the most recent instance of the government’s use of the state secrets privilege.
In a 2011 report to Congress, the Justice Department had said it would try not to employ the privilege in a way that would require dismissal of an entire complaint.
“While invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”
But in this case, the government told the Court that nothing short of complete dismissal would do.
“If the Attorney General’s privilege assertion is upheld, as it should be, the law requires that the Court then consider the consequences of the exclusion of the privileged information,” the Department said in a May 28 memo elaborating its position. “Here, because properly protected national security information would go to the core of the claims and defenses, this case cannot proceed in the absence of that information, and, under established Fourth Circuit authority, the case must be dismissed.”
Attorneys for the plaintiff disputed that view, and said the case could and should proceed.
“Simply put, just as federal courts in Latif and Ibrahim [other cases involving the no fly list] found a way to litigate the merits of No Fly List claims without imperiling state secrets, this Court can do so here as well,” the CAIR attorneys wrote in a July 7 rejoinder. “Though Plaintiff will seek additional non-privileged information from Defendants, it is important to note at the outset that Plaintiff can, if need be, litigate this case without further discovery from Defendants,” they wrote.
The case is being heard by Judge Anthony J. Trenga of the Eastern District of Virginia. He has yet to rule on the pending Government motion for dismissal on state secrets grounds.
In a move that may imply a degree of skepticism concerning the proposed application of the privilege, Judge Trenga ordered the government to submit for in camera review a copy of all documents and a summary of all testimony relevant to the case that it asserts fall under the state secrets privilege. The materials are to be provided to the Court under seal by September 7, Judge Trenga wrote in an August 6 order.
For further background, see 2008 Obama Would Have Slammed 2014 Obama for This Government Secrecy Case by Nick Baumann, Mother Jones, July 14, 2014; and Over Government Objections, Rules on No-Fly List Are Made Public by Charlie Savage, New York Times, July 23, 2014.