A definitive accounting of the number of lawsuits in which the U.S. Government has invoked the state secrets privilege cannot be provided because some of those cases may be too sensitive to acknowledge or disclose, the Department of Justice told Congress in newly released correspondence from 2013.

“Some matters involving classified or sensitive information may need to be litigated under seal, and thus it should be noted that it may not be possible or appropriate for the Department to indicate the precise number or names of matters in which the Attorney General has approved the Department’s defense of an invocation of the [state secrets] privilege,” DoJ wrote in response to a question for the record from Rep. Jerrold Nadler following a June 2012 House Judiciary Committee hearing.

The Department’s answers to questions for the record from Rep. Nadler and others were released last week under the Freedom of Information Act. They did not appear in the published record of the June 7, 2012 House Judiciary Committee hearing because they were transmitted by DoJ too late to be included. The full exchange of questions and answers is available here.

When a lawsuit involving state secrets raises credible allegations of government wrongdoing, it is DoJ policy to refer the allegations to the Department’s Inspector General. However, DoJ rejected Rep. Nadler’s request to identify whether or how often such cases had been referred.

“The Department’s policy is not to disclose referrals made to Inspectors General regarding possible misconduct of employees of other agencies or referrals to the Department’s Office of Professional Responsibility. Consistent with that policy, we could not provide the number of cases, if any, that may have been referred to an IG pursuant to the Department’s policy on the state secrets privilege,” DoJ wrote.

In 2011, the Department produced its first periodic report to Congress on the use of the state secrets privilege. “We expect a second report to be submitted in the near future,” DoJ told Rep. Nadler. But no second report has been made available to date.

DoJ did not evade all of Rep. Nadler’s questions, however.

The Congressman asked: “Can a judge disagree with the executive branch’s decision as to whether the privilege is properly invoked?” And DoJ replied: “Yes. Reynolds provides that “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege.” See 345 U.S. at 8.”

DoJ also indicated that the Attorney General approved the assertion of the state secrets privilege in six acknowledged cases between 2009 and 2013. One of the those cases, Roule v. Petraeus in the Northern District of California, has not been widely recognized as a state secrets case.

In that proceeding, Walter Roule, a pseudonym for a covert CIA employee, alleged that he had been the object of employment discrimination because his wife was a foreign national of Asian ethnicity.

The CIA moved to dismiss the case in July 2012 after then-CIA Director David Petraeus formally asserted the state secrets privilege. “I make this claim of privilege in my capacity as the Director of the CIA and after deliberation and personal consideration of the matter. My judgment in this matter necessarily rests on my knowledge of the vulnerability of our sources and methods, my experience, and the advice of other CIA professionals,” DCIA Petraeus wrote. The case was dismissed by stipulation of the parties.

Rep. Nadler reintroduced a bill last March to establish standards by which courts could evaluate government assertions of the state secrets privilege (H.R. 4767, the State Secrets Protection Act). But the legislation has not moved out of subcommittee.

The government has occasionally invoked the state secrets privilege in a legal proceeding without ever publicly revealing that it had done so, government attorneys disclosed in a pending state secrets case this week.

Last September, observers were surprised when the government intervened and asserted the state secrets privilege in a private defamation lawsuit brought by Greek businessman Victor Restis against the anti-Iran advocacy organization United Against Nuclear Iran. (“Private Lawsuit Jeopardizes State Secrets, US Says,” Secrecy News, September 14).  When the government further refused to specify the nature of the information it said was privileged, or even which agency was invoking the privilege, critics called the move extraordinary and unprecedented.

But it was not unprecedented, government attorneys replied this week. To the contrary, the current case is actually within the “historical spectrum” of state secrets cases, and there are some that have been even more secretive.

“There […] have been cases, like this one, where specific details concerning the Government’s interest in a private lawsuit could not be described on the public record,” attorneys told the court in their November 19 reply.

They cited, for example, a 1992 case known as Terex Corporation v. Richard Fuisz and Seymour Hersh, in which the plaintiff had accused the defendants of defamation. The government asserted the state secrets privilege in that case, but without identifying the source of the assertion, and the case was dismissed.

“There, as here, the Government submitted its supporting declaration ex parte and in camera and did not publicly disclose which agency asserted the privilege.”

“The Government does not fault plaintiffs and amici for not being aware of the Terex case, as there appear to be no public decisions from that matter on Westlaw,” attorneys added. The case was discussed in a declaration by Anthony J. Coppolino, attached to the government response.

But the “spectrum” of secrecy has sometimes extended even beyond that, the attorneys wrote:

“Although extremely rare, there also have been matters in which the Government’s state secrets assertion has been entirely under seal. By definition, of course, sealed matters cannot be found on the public record.”

Judging by that standard of total invisibility, the government has been substantially forthcoming in the present case, the government attorneys said, particularly since it admits that it is invoking the state secrets privilege.

“In publicly acknowledging that it is asserting the state secrets privilege in this case and submitting a public brief in support of its assertion, the Government has disclosed more information about its state secrets privilege assertion here than has occurred in prior sealed matters,” they wrote.

It follows that the plaintiff in this case is not entitled to any further information about the assertion of the state secrets privilege, they insisted, and no further public disclosure should be required by the court.

“The Government cannot publicly reveal the scope or nature of the privileged information at issue here. Whatever impact exclusion of this information would have on the parties’ ability to establish their claims or valid defenses, the Government believes that further proceedings would inevitably risk the disclosure of state secrets if this case were to proceed. In general terms, this risk turns on the nature of the question presented in this action and the proof required by the parties to establish or refute the claim, as well as on the risks associated with the normal give and take of adversarial questioning and probing.”

“But in no event should the Court disclose or direct disclosure of additional information without providing an opportunity for the Government to engage further with the Court or, if necessary, to seek further review,” they wrote.

*    *    *

In a separate filing, the defendant United Against Nuclear Iran (UANI) said that all of its allegedly defamatory statements against Victor Restis were true and correct, and that the plaintiff was entitled to no relief at all, whether or not the case went forward.

But in presenting its argument, the UANI filing listed over a dozen allegations against Restis that it said could be established on the basis of existing documents and testimony that were not subject to the state secrets privilege.

And the number and specificity of those allegations implicitly suggested that it might be possible to litigate the case on the basis of non-privileged information after all.

*    *    *

When the court in the lawsuit Gulet Mohamed v. Eric Holder rejected a government motion to dismiss that case on state secrets grounds on October 30, I supposed incorrectly that it might be the first time such a motion for dismissal had been denied in a state secrets case (Secrecy News, October 31).

In fact there have been quite a few such denials, many of which were itemized in an exhibit filed by the government this week in the Restis case.

However, denial of a motion for dismissal does not entail denial of the privilege or release of the information that is said to be privileged.

Government attorneys told the Restis court that there was not “a single case in which a state secrets assertion actually made by the Government in civil litigation was finally rejected by courts reviewing the matter, and in which the privileged information at issue was ultimately ordered to be disclosed.”

Yesterday, Judge Anthony J. Trenga denied a government motion for a stay of proceedings in the Gulet Mohamed v. Holder case, and said that the case challenging the constitutionality of the “no fly” list would go forward while the government revises its watchlisting procedures.

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.

The U.S. Government overreached by intervening in a private defamation lawsuit to assert the state secrets privilege without providing a public explanation or even identifying which agency was asserting the privilege, the plaintiff in that lawsuit yesterday.

That argument was bolstered by an amicus brief from civil liberties organizations concerning the proper use of the privilege and the alternatives to dismissal of the case.

The issue arose after Greek businessman Victor Restis filed the lawsuit last year against the private group United Against Nuclear Iran (UANI), alleging that it had falsely accused Restis of engaging in illicit commerce with Iran.

The U.S. Government, which was not a party to the case, unexpectedly asserted the state secrets privilege and moved for dismissal of the case in September, while refusing to disclose exactly why or by whom the privilege was being asserted.

“The Government’s refusal to make [any] public disclosure at all — even its basic theory of how the privilege may apply in this unprecedented setting — suggests not that nothing can be disclosed, but that the Government is again overplaying a weak hand that likely would not survive public scrutiny,” wrote Abbe D. Lowell, attorney for the plaintiff Mr. Restis.

“Assuming state secrets exist here — which Plaintiffs will not concede in this improbable setting without additional information from the Government — imposing the civil litigation equivalent of the death penalty [i.e. dismissal of the case] is not appropriate…. Reasonable alternatives do exist here that would finally permit this case to proceed to a fair adjudication of the merits,” Mr. Lowell wrote.

He urged the court to “require additional public disclosure from the Government and Defendants, and provide Plaintiffs’ counsel access to the Government’s submissions. Only then can the adversarial process test the Government’s state secrets privilege claim and, if applicable, determine the appropriate remedy.”

A similar approach was endorsed by the ACLU and several other civil liberties organizations in an October 29 amicus brief.

“The government’s refusal here to provide a public declaration supporting its assertion of the state secrets privilege is unprecedented in the annals of state secrets litigation,” the civil liberties groups wrote.

“Even in cases involving extraordinarily sensitive subject matter such as governmental torture, surveillance, intelligence, and secret weapons systems, litigants have had some basis for understanding the governmental interest in the litigation. Here, by contrast, the parties lack even the broadest contours of government’s alleged justification for the draconian result it seeks: denying a forum for a lawsuit between two private parties.”

“However, if this case is so unique that no further public disclosure is possible, the Court should respond to the unprecedented circumstances the government has created by requiring the government to disclose to security-cleared counsel for the parties the following information: the scope of the privilege assertion; the basis for believing that evidence within the scope of the privilege assertion truly is secret; and the potential harm to national security that could result from public disclosure of the evidence.”

In the end, the government’s claim that state secrets are somehow implicated in this private defamation lawsuit raises several odd and unexplained issues, the plaintiff’s attorney said.

“If the Government is asserting the theory that Defendants [United Against Nuclear Iran] cannot assert a proper defense without state secrets, then numerous questions need to be answered by the Defendants before the Court can rule on that assertion,” suggested Mr. Lowell in his brief.

“Do they [the Defendants] maintain any classified information in their files (despite procedures that would seem to prevent that)? If Defendants or their counsel do have classified information, how did they obtain that information, and do Defendants and their counsel have adequate security clearances such that they can properly access that information? Why would this information be relevant to its allegations against Plaintiffs? Would this information constitute a valid defense against a defamation claim? What element of the defamation claim would this provide a valid defense against? Do Defendants plan to even assert the defense that raises the Government’s concern? Will Defendants deny that they used whatever the Government is trying to protect in their campaign against Plaintiffs, such that the secret has not already been improperly used? Defendants should be required to answer these questions.”

The Defendants and the U.S. government are to file their respective briefs in opposition by November 12.

Last week government attorneys submitted 28 documents concerning “watchlisting” procedures to a federal court for in camera review that they said should be protected from disclosure under the state secrets privilege.  The documents had been sought by the plaintiff in Gulet Mohamed v. Eric Holder, a case challenging the constitutionality of the “no fly” list.

The government had previously argued that it was “not appropriate” for a court to perform its own review of such privileged records. But it nevertheless complied with a court order to produce them (under seal).

The government reiterated its position that “the assertion of the state secrets privilege in this case is proper, and the appropriate consequence of the assertion of the privilege is dismissal of Plaintiff’s case.”

Beyond that, government attorneys also took the opportunity to rebut the court’s criticism of the use of the state secrets privilege, and to defend several past assertions of the privilege.

In a September 15 court order, Judge Anthony J. Trenga, who is hearing the Gulet Mohamed case, had commented (in a footnote at p.5) that “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring.” He mentioned several problematic instances beginning with Reynolds v. US, the 1953 Supreme Court case that recognized the state secrets privilege based on claims that were later called unfounded or even fraudulent.

The government pushed back against those comments and defended each of the controversial assertions of the state secrets privilege cited by Judge Trenga.

“The suggestion that the privilege assertion in Reynolds lacked a proper basis is mistaken,” the government insisted, noting that courts had rejected persistent allegations of government fraud in that case.

Among the documents that the government submitted to the court on Friday is the Watchlisting Guidance that defines the procedures and criteria for adding someone to the no-fly list.

In its public filing, the government did not acknowledge that the purportedly privileged Watchlisting document has been publicly disclosed and published online (by The Intercept). But government attorneys had previously argued that any purported leak did not necessarily alter the privileged status of the leaked document. It will now be up to Judge Trenga to determine whether or not that is so.

The documents submitted for review were accompanied by a heavily redacted declaration from Michael Steinbach, Assistant Director of the FBI Counterterrorism Division.

In another pending state secrets case, Restis v. United Against Nuclear Iran, several civil liberties groups asked for leave to submit an amicus curiae brief concerning the proper use of the state secrets privilege. Somewhat mysteriously, the government intervened to assert the state secrets privilege in that case, though it was not a party to it. Nor would it reveal which executive branch agency is actually asserting the privilege — which may be a roundabout way of saying, “It’s the CIA.”

“The proposed [amicus] brief will address the scope and nature of the state secrets privilege, the procedures that must accompany any proper assertion of the privilege, and the public interest at stake when the Government seeks to invoke the privilege,” wrote Dror Ladin on behalf of the ACLU, the Brennan Center for Justice, the Center for Constitutional Rights, the Constitution Project, the Electronic Frontier Foundation, and the Sunlight Foundation.

Without objection from any of the parties, the civil liberties groups were granted permission to submit their brief by October 29.