Appeals Court Curbs Use of State Secrets Privilege

The government’s use of the state secrets doctrine to shut down litigation on certain sensitive national security topics could be sharply curtailed by a new federal appeals court ruling (pdf).

The ruling came in a lawsuit brought by the ACLU against a company called Jeppesen DataPlan and filed on behalf of several plaintiffs who said they were unlawfully seized and transported with Jeppesen’s flight support to foreign countries where they were allegedly interrogated under torture in a CIA “extraordinary rendition” program.

The government sought to have the whole case thrown out because the subject matter, it said, is a “state secret.”  The lower court agreed, and dismissed the case last year.

But the appeals court said the state secrets privilege can only apply to “evidence” to be introduced in court, not to mere “information.”  The ruling sent the case back to the lower court with the instruction that “the government must assert the privilege with respect to secret evidence (not classified information)” and the lower court must then determine whether the privilege applies.  Only if the privilege is granted and if the privileged evidence is indispensable to the case could the case then be dismissed.

This would rule out the approach followed by the Bush and Obama Administrations in which they invoked the state secrets privilege to effectively block litigation on entire topical areas — shielding whole categories of information such as extraordinary rendition and warrantless surveillance — not just to prevent the introduction of specific evidence that they claimed was privileged.

In another crucial distinction, the court said that the fact that certain information is “classified” does not necessarily mean that it is “secret” for purposes of the privilege.

“A rule that categorically equated ‘classified’ matters with ‘secret’ matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process,” the court said.  (“Abuse of the Nation’s information classification system is not unheard of,” the court noted drily.)

Instead of relying solely on government classification claims, “courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the [state secrets] privilege.”

Such an independent judicial evaluation of official secrecy claims is precisely what critics of recent use of the state secrets privilege such as Louis Fisher and others have been asking for.  (The court cited a review of books by Fisher and Barry Siegel about the 1953 Reynolds case and the state secrets privilege that was published earlier this year in the New York Review of Books.)  Judicial review is also the centerpiece of the proposed “State Secrets Protection Act” that is pending in Congress.

The government has not yet indicated how it will respond to the ruling.