Nuclear Weapons

Court Overturns Dismissal of “State Secrets” Case

08.17.07 | 2 min read | Text by Steven Aftergood

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege.

The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government’s invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case.

“In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said.

The Court presented its ruling as a straightforward application of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege.

“The majority’s reversal of the district court’s decision,” wrote Judge Janice Rogers Brown, “pushes this circuit’s state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.”

The case was remanded to the district court level for further deliberation.

See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007.

Coincidentally, the American Bar Association this week adopted a resolution (pdf) urging that “whenever possible,” federal civil cases should not be dismissed “based solely on the state secrets privilege.”

The ABA resolution also proposed a set of legislative changes designed “to encourage meaningful judicial review of assertions of the state secrets privilege” and to regulate use of the privilege.

A copy of the ABA resolution, adopted August 13, and an accompanying report elaborating on its recommendations may be found here.

publications
See all publications
Nuclear Weapons
Report
Nuclear Notebook: Russian Nuclear Weapons, 2023

The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons, and has been published in the Bulletin of the Atomic Scientists since 1987.. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]

05.08.23 | 1 min read
read more
Nuclear Weapons
Blog
Video Indicates that Lida Air Base Might Get Russian “Nuclear Sharing” Mission in Belarus

On 14 April 2023, the Belarusian Ministry of Defence released a short video of a Su-25 pilot explaining his new role in delivering “special [nuclear] munitions” following his training in Russia. The features seen in the video, as well as several other open-source clues, suggest that Lida Air Base––located only 40 kilometers from the Lithuanian border and the […]

04.19.23 | 7 min read
read more
Nuclear Weapons
Blog
Was There a U.S. Nuclear Weapons Accident At a Dutch Air Base? [no, it was training, see update below]

A photo in a Los Alamos National Laboratory (LANL) student briefing from 2022 shows four people inspecting what appears to be a damaged B61 nuclear bomb.

04.03.23 | 7 min read
read more
Nuclear Weapons
Blog
STRATCOM Says China Has More ICBM Launchers Than The United States – We Have Questions

In early-February 2023, the Wall Street Journal reported that U.S. Strategic Command (STRATCOM) had informed Congress that China now has more launchers for Intercontinental Ballistic Missiles (ICBMs) than the United States. The report is the latest in a serious of revelations over the past four years about China’s growing nuclear weapons arsenal and the deepening […]

02.10.23 | 6 min read
read more