Court Denies Motion to Dismiss State Secrets Case

Updated/corrected below

A federal court yesterday denied a government motion to dismiss a pending lawsuit that the Obama Administration said involved state secrets. It appears to be the first time that such a motion for dismissal has ever been rejected in a state secrets case. [Update: Not so. There was a previous instance; see below.] The lawsuit, Gulet Mohamed v. Eric H. Holder, concerns the constitutionality of the “no fly” list.

The government filed its dismissal motion last May 28. It included a declaration from Attorney General Eric Holder in which he asserted “a formal claim of the state secrets privilege in order to protect the national security interests of the United States.” An accompanying memorandum of law elaborated on the government’s claim.

In August, Judge Anthony J. Trenga of the Eastern District of Virginia ordered the government to provide copies of the assertedly privileged documents for his in camera review. After initially resisting and seeking reconsideration of that order, the government complied.

Based on his review, Judge Trenga yesterday issued his order denying the government motion for dismissal of the case. He said that “the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient” to justify suspending the proceeding, though he declined to rule definitively on whether the state secrets privilege did or did not apply to any of the documents. He did allow that some of the documents appear to contain security sensitive information that may be subject to a law enforcement privilege.

Even so, the case can go forward without the documents, he said, and dismissal is unwarranted.

“None of the documents are so related to plaintiff’s procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents,” he wrote in his October 30 order.

The state secrets privilege is not a get out of jail (or get out of court) free card, Judge Trenga indicated.

“The state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability,” he wrote. This means that it can be properly used to prevent the introduction of specific items of evidence, but not to sweepingly exclude whole domains of law and policy from litigation or due process.

In theory, the Department of Justice agrees with this position, which it endorsed in a September 2009 policy statement.

“Under this policy, the Department will narrowly tailor the use of the states secrets privilege whenever possible to allow cases to move forward in the event that the sensitive information at issue is not critical to the case,” the Justice Department said then.

But since that policy was issued in 2009 by Attorney General Holder, there is no known case in which Department officials actually went on to “narrowly tailor” their use of the privilege in this way. Now Judge Trenga has done it for them.

Update/Correction: A government assertion of the state secrets privilege has previously been rebuffed in court. Judge Allen G. Schwartz denied a CIA state secrets claim in a 2003 decision in Sterling v. Tenet, an employment discrimination case. However, the dismissal of the case was upheld on appeal.