Secrecy About Secrecy: The State Secrets Privilege

The Justice Department has not reported to Congress on the government’s use of the state secrets privilege since 2011, the Department acknowledged this week, contrary to a policy promising regular reporting on the subject.

In a 2009 statement of policy and procedures concerning the state secrets privilege, then-Attorney General Eric Holder said that “The Department will provide periodic reports to appropriate oversight committees of Congress with respect to all cases in which the Department invokes the privilege on behalf of departments or agencies in litigation, explaining the basis for invoking the privilege.”

In April 2011, the first such report was produced. It was one of several steps that were “intended to ensure greater accountability and reliability in the invocation of the privilege. They were developed in the wake of public criticism concerning the propriety of the Government’s use of the state secrets privilege.”

But the first periodic report on the state secrets privilege has turned out to be the last.

In 2014, John Carlin of the Department’s National Security Division affirmed the policy during his confirmation. “I understand that the Department’s policy remains to provide periodic reports to appropriate oversight committees of Congress regarding invocations of the State Secrets Privilege in litigation, and the Department provided its initial report to Congress on April 29, 2011,” he told the Senate Intelligence Committee. “I believe that the Department plans to submit another report in the near future.”

But no such report was ever submitted.

“No records responsive to your request were located,” the Justice Department stated this week in response to a FOIA request for any subsequent reports.

While Congress could request and require such a report at any time, it has not done so. And because the 2009 Holder policy on state secrets was “voluntarily” adopted by the Justice Department in response to public controversy, there was nothing to stop the policy from being unilaterally abandoned.

CIA Asserts State Secrets Privilege in Torture Case

The Central Intelligence Agency formally asserted the state secrets privilege this week in order to prevent disclosure of seven categories of information concerning its post-9/11 interrogation program, and to prevent the deposition of three CIA officers concerning the program.

The move was first reported in the New York Times (“State Secrets Privilege Invoked to Block Testimony in C.I.A. Torture Case” by James Risen, Sheri Fink and Charlie Savage, March 8).

“Over time, certain information about the [CIA interrogation] program has been officially declassified and publicly released,” acknowledged CIA director Michael Pompeo, in a March 2 declaration explaining the CIA’s justification for asserting the state secrets privilege. “For example, the enhanced interrogation techniques employed with respect to specific detainees in the program, and their conditions of confinement, are no longer classified.”

“Nonetheless, many details surrounding the program remain highly classified due to the damage to national security that reasonably could be expected to result from disclosure of that information. For this reason, the CIA has withheld or objected to the disclosure of certain information implicated in discovery in this case,” he wrote.

“The Government has undertaken significant, good faith efforts to produce as much unclassified discovery as possible,” the Justice Department said in its March 8 motion. But “The Government has satisfied the procedural requirements for invoking the state secrets privilege.”

The government said that it had followed the guidance issued by Attorney General Eric Holder in 2009 that was intended to increase internal oversight of state secrets claims by elevating them to the attention of the Attorney General, among other steps.

“These standards and procedures were followed in this case, including personal consideration of the matter by the Attorney General and authorization by him to defend the assertion of the privilege,” Justice attorneys wrote.

The state secrets privilege has often been used in the past to terminate litigation altogether by barring introduction of essential evidence. But not in this case.

“The Government is not seeking dismissal here,” the Justice Department motion said. So even if the state secret privilege claims are granted by the court, as seems likely, the lawsuit could still move forward.

“We think [the] case can proceed on [the] public record,” tweeted attorney Hina Shamsi of the ACLU, which represents the plaintiffs in the case against two CIA psychologists.

Some State Secrets Cases May Stay Secret

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.

Another State Secrets Case Ends in Dismissal

Last week, a federal court dismissed a lawsuit against the Central Intelligence Agency after the government asserted the state secrets privilege and argued that the case could not be litigated without jeopardizing national security.

Former CIA officer Jacob E. Abilt (a pseudonym) had charged the Agency with employment discrimination, improper retaliation and wrongful termination. In December, CIA Director John Brennan invoked the state secrets privilege to block the lawsuit.

“The facts of Mr. Abilt’s employment with the CIA are replete with classified information,” Mr. Brennan wrote. “For example, the specific National Clandestine Service operations on which he worked are classified. For the majority of his supervisors and coworkers, even the fact of their association with the CIA is classified. The nature and description of the work that they performed is classified….”

“Any exploration therefore of Mr. Abilt’s employment, and that of his colleagues, will necessarily risk disclosure of highly sensitive classified details concerning the existence and nature of clandestine CIA collection programs and activities,” Mr. Brennan wrote.

In opposition, Mr. Abilt’s attorneys argued that the case could proceed without any compromise of national security.

“Mr. Abilt would be able to prove his employment discrimination claims without exposing classified information. Defendant [CIA] is incorrect that specific classified information like a CIA employee’s identity,… or the location of covert CIA facilities is needed by Mr. Abilt to prove his claims,” they wrote in a December 24 response.

The government disputed that response in a January 9, 2015 reply: “Although some very basic facts of Plaintiff’s CIA employment can be safely described at a high level of generality, litigation regarding those facts would nonetheless not be possible without revealing privileged information. ”

Last week, Judge Gerald Bruce Lee of the Eastern District of Virginia accepted the CIA position and dismissed the case (as reported in Courthouse News Service on February 18).

“Privileged information is at the heart of Plaintiff’s claims for discrimination on the basis of disability and race, hostile work environment and retaliation, [and] Defendants cannot defend this action without relying on privileged information,” Judge Lee wrote in a February 10 order.

Mr. Abilt is an African American who suffers from narcolepsy and was prone to fall asleep at work. He was evidently authorized to take naps while employed at the CIA’s National Clandestine Service. “The naps did not interfere with his ability to successfully perform his duties,” according to the plaintiff’s December 24 opposition.

In principle, Mr. Abilt’s case could be referred for further investigation by the CIA inspector general, as provided under the terms of a September 2009 Department of Justice policy on state secrets cases for disputes that cannot be litigated. But there are no known cases where such a referral has actually been carried out.

The 2009 DOJ policy also promised a periodic report to Congress on current litigation involving the state secrets privilege. But no such report has been transmitted since April 2011.

Other pending state secrets cases include Gulet Mohamed v. Eric Holder, a challenge to the “no fly” list procedures. The government this week requested and was granted an opportunity for additional briefing in that case, including public filings.

And in the most peculiar of state secrets cases, Victor Restis v. United Against Nuclear Iran, the government has intervened to shut the case down even though it is not a party to the proceeding. Nor will it say on the public record which U.S. government agency is asserting the privilege or why it is doing so.

The plaintiff filed a motion last October to compel the government to disclose further information concerning its state secrets claim, and the issue was fully briefed by early December. A decision had been anticipated by the end of 2014. But Judge Edgardo Ramos of the Southern District of New York has still not ruled on the matter.

Court to Weigh Judicial Approval of “No Fly” Cases

In a pending lawsuit challenging the constitutionality of the “no fly” list, in which the government has asserted the state secrets privilege, a federal court signaled that it would consider requiring judicial approval of “no fly” determinations involving U.S. citizens.

Judge Anthony J. Trenga, who presides over the case Gulet Mohamed v. Eric Holder in the Eastern District of Virginia, set a hearing on February 24 to allow the government to supplement its argument that the case must be dismissed on state secrets grounds. Judge Trenga has previously rejected government arguments that state secrets required dismissal of the case and concluded the case could proceed without the assertedly privileged documents. (Secrecy News, 10/31/14).

In a February 2 order, he told the government to be prepared to explain “how the under seal documents as to which the state secrets privilege is claimed preclude adjudication of the procedural due process claims without their use and disclosure.”

Beyond that, however, Judge Trenga hinted at a possible remedy to the constitutional challenge before the court involving independent judicial review of “no fly” determinations.

He asked the government to address “whether, and if so how, national security considerations make it impractical or otherwise undesirable to submit for ex parte, in camera judicial review and approval the placement of United States citizens on the No Fly List, either before a citizen’s placement on the No Fly List or within a specific time period after placement on the No Fly List.”

The upcoming hearing will be closed and ex parte.

Court Views State Secrets Too Narrowly, Govt Says

The scope of the state secrets privilege is again a matter of contention, as government attorneys in an ongoing lawsuit told a judge last week that he had construed the privilege too narrowly.

Is the state secrets privilege applicable only to discrete items of evidence whose disclosure can be shown to harm the Nation? Or can the privilege be invoked more broadly based on the “context” in which litigation occurs? The proper parameters of the state secrets privilege have never been defined in statute, and so these questions recur.

In a pending lawsuit concerning the constitutionality of the “no fly” list (Gulet Mohamed v. Eric Holder), the presiding judge has taken a distinctly skeptical view of the government’s use of the state secrets privilege.

Judge Anthony J. Trenga of the Eastern District of Virginia last fall denied a government motion to dismiss the case on state secrets grounds (Secrecy News,10/31/14), and he concluded that the government’s claim of privilege to withhold 28 specified documents was inadequately justified.

But last week, the government renewed its claim that Judge Trenga was “in error,” and that his ruling “may have been based on an improperly narrow construction of the scope of the privilege.”

Specific pieces of documentary evidence are not the only things that can be subject to the state secrets privilege, the government insisted.

“The Attorney General’s assertion of the state secrets privilege in this case is not limited to certain physical documents that Plaintiff seeks to compel through discovery, but rather covers evidence and information that would be needed to litigate the claims presented in this lawsuit in whatever form it appears,” the government argued.

Nor is the privilege simply limited to “information” rather than “documents,” in the government’s view.

“An assessment of the privilege assertion encompasses not just the information set forth in the four corners of a particular document, but also the broader context of the privileged information which that document reflects,” the government asserted in itsJanuary 23 pleading.

By contrast, the government said, Judge Trenga’s order to the contrary “appears to circumscribe the scope of [the government’s] assertion of the state secrets privilege… by focusing on the specific documents” sought by the Plaintiffs in discovery, and then finding those documents insufficiently sensitive to be privileged on state secrets grounds.

“The privilege also protects information that may appear innocuous on its face, but which in a larger context could reveal sensitive classified information,” the governmentargued.

In other words, the government seems to say here, the state secrets privilege has no limiting principle by which it can be circumscribed and objectively constrained.

The State Secrets Protection Act, a bill repeatedly introduced in Congress but never enacted into law, would have made clear that “the state secrets privilege is an evidentiary rule, not a justiciability rule, and can only be asserted with respect to items of evidence that plaintiffs seek in discovery or intend to disclose in litigation.”

It would also have set “a standard of review designed to give appropriate respect to the executive branch’s institutional expertise and constitutional role, without undermining the judge’s duty to make an independent determination on each privilege claim.”

Essentially, according to a 2008 Senate report, “the bill rejects the  expansion of the state secrets privilege into any manner of justiciability doctrine, and demands that it be applied as a purely evidentiary privilege.”

But in the absence of legislative action, the asserted scope of the privilege continues to drift.

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Under the terms of a 2009 policy, the Department of Justice committed to provide periodic reports to Congress with respect to all cases in which the state secrets privilege was invoked.

But it has failed to do so, observed Sen. Dianne Feinstein yesterday at the confirmation hearing of Loretta Lynch, the Attorney General-nominee. Only one such report has been transmitted, in 2011, and it does not cover all current state secrets proceedings.

“I believe that the Department plans to submit another report in the near future,” said John Carlin, the head of the Justice Department National Security Division, in a written response to questions prior to his confirmation hearing. But that was in February 2014, and no subsequent report to Congress has been produced.

Nor have any of the 2009 policy’s other provisions been implemented in a way that could be externally verified. No narrowly tailored uses of the privilege have been asserted, as far as anyone knows, and no disputed matters considered subject to the privilege have been forwarded to the Inspector General for review.

Some State Secrets Cases Are a Secret, Govt Says

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.

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.

State Secrets Claim Challenged in Defamation Lawsuit

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.

Govt Rebuts Criticism of State Secrets Privilege

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.

State Secrets Privilege Used Improperly, Court is Told

When the government intervened in a private lawsuit to assert the state secrets privilege and to seek dismissal of the entire proceeding (Secrecy News, September 15), it acted improperly and misused the state secrets privilege, the attorney for the plaintiff in the case told the Court yesterday.

“The Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment,” wrote Abbe D. Lowell, the plaintiff’s attorney in Restis v. United Against Nuclear Iran.

Specifically, by refusing to identify the subject or scope of the privileged information, or even the agency that was asserting the privilege, the government has “violate[d] any semblance of due process” and “prevent[ed] the opposing party from understanding the claim in any fashion,” he wrote.

The Government says that “the identity of the concerned federal agency, the particular information at issue, and the bases for the assertion of the state secrets privilege cannot be disclosed without revealing classified and privileged matters,” according to a memorandum filed September 12.

But Mr. Lowell asked the Court to order the Government to file a public declaration in support of its privilege claim so that the Plaintiff could offer a substantive rebuttal.

“In the typical state secrets case, the Government will simultaneously file both a sealed ex parte declaration and a detailed public declaration,” Mr. Lowell noted. “The Government has not offered any explanation as to why it cannot do so here. [In other state secrets cases,] there always is some way for the Government to identify the nature of its privilege claim without disclosing the privileged information itself.”

“Absent further disclosure from the Government, the Plaintiffs cannot meaningfully respond to the Government’s claim. The Plaintiffs cannot test whether the supposed evidence at issue is a state secret, and they also cannot test the relevance of that evidence to its case.”

“In every other case of which we are aware, the Government made sufficient public disclosure of the nature of the state secrets and its reasons for seeking dismissal to allow those claims to be tested, and all Plaintiffs ask is that the Government do so here, so that Plaintiffs can then respond adequately to the actual motions filed,” Mr. Lowell wrote.

“The Plaintiffs plan to advance their claims without using any state secrets,” he noted, “and it is not clear how state secrets could be relevant to the defense.”

Court Requires Review of State Secrets Documents

Over the objections of government attorneys, a federal judge said yesterday that he would require in camera review of documents that the government says are protected by the state secrets privilege. The issue arose in the case of Gulet Mohamed v. Eric Holder, challenging the constitutionality of the “no fly” list.

The government had argued that it is “inappropriate” for a court to review such records to verify that they are validly privileged, and that instead the court should grant dismissal of case on the basis of official declarations. (Gov’t Resists Court Review of State Secrets, Secrecy News, August 27). The government moved for reconsideration of an August 6 order to produce the records for in camera review.

Yesterday, Judge Anthony J. Trenga of the Eastern District of Virginia granted the government’s motion for reconsideration, but he said that having reconsidered the matter, he determined that he had been right the first time around.

“Upon reconsideration of its Order, however, the Court finds that none of [the] objections justifies vacating the Order, as the defendants request. The Court therefore affirms its Order.”

“This case involves complex and unsettled issues pertaining to the respective roles of the legislative, executive and judicial branches,” Judge Trenga wrote. “One central issue is the extent to which the War on Terrorism may expand the ability of the executive branch to act in ways that cannot otherwise be justified.”

The Court “understands its limited institutional competence to assess claims of national security and its obligation not to extend its review of claims of state secrets beyond what is necessary for the Court to perform its institutional role,” Judge Trenga wrote. Nevertheless, under current circumstances “the Court concludes that it is necessary for the Court to review at this stage certain of the underlying documents as to which the state secrets privilege is asserted.”

“This case involves the extraordinary exercise of executive branch authority to operate a program [the “no fly” procedure] that results in the deprivation of basic liberties according to secret executive branch decision making, without pre-deprivation judicial review…. [Therefore,] the Court has a particularly strong and heightened institutional responsibility in these circumstances to review and assess the propriety of such executive branch activity since to dismiss this case as the defendants request would, in essence, judicially sanction conduct that has far-reaching implications.”

Merely relying on government assertions of privilege without independent review of their basis and validity is inadequate since “In many instances, the privilege claims are conclusory, and it is difficult, if not impossible, to assess the merits of those claims….”

“The Court therefore cannot accept, without further inquiry and review, that all of the documents as to which the state secrets privilege has been invoked in fact contain state secrets, or that any state secrets that might be contained in the listed documents would preclude the litigation of the plaintiff’s claims…,” Judge Trenga wrote.

He ordered the government to produce the relevant documents for in camera review on or before October 15, 2014.

In a footnote, Judge Trenga’s Order contains a rare judicial acknowledgment that “The government’s assertion of the state secrets privilege in certain cases has been less than reassuring. See Reynolds v. United States, 345 U.S. 1 (1953), in which it became apparent years later, after the claimed state secrets document was declassified, that it did not implicate state secrets….”