Court Dismisses Case Based on State Secrets Privilege

A federal court yesterday dismissed a lawsuit which alleged that the Federal Bureau of Investigation had engaged in unlawful surveillance of Muslim residents of southern California.  The court granted the Obama Administration’s claim that the state secrets privilege precluded litigation of the case.

The plaintiffs in the case contended that the FBI had “conducted an indiscriminate ‘dragnet’ investigation and gathered personal information about them and other innocent Muslim Americans in Southern California based on their religion.”

The government said various aspects of the subject were too sensitive to be addressed in open court.  Last year, Attorney General Eric Holder filed a declaration asserting that several categories of information pertaining to the case were protected by the state secrets privilege and their disclosure “could reasonably be expected to cause significant harm to the national security.”

Yesterday, Judge Cormac J. Carney of the Central District of California agreed and he issued an order dismissing most of the plaintiffs’ claims.

“Further litigation,” he wrote, “would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.”

In his order, Judge Carney also reflected more broadly on the function of the state secrets privilege and its implications for individual liberties.

“The state secrets privilege strives to achieve a difficult compromise between the principles of national security and constitutional freedoms. The state secrets privilege can only be invoked and applied with restraint, in narrow circumstances, and infused with judicial skepticism. Yet, when properly invoked, it is absolute—the interest of protecting state secrets cannot give way to any other need or interest,” he wrote.

It follows that “the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.”

“The Court recognizes the weight of its conclusion that Plaintiffs must be denied a judicial forum for their claims. The Court does not reach its decision today lightly, but does so only reluctantly, after months of careful review of the parties’ submissions and arguments, particularly the Government’s in camera materials upon which the Court heavily relies.”

“Plaintiffs raise the specter of Korematsu v. United States… and protest that dismissing their claims based upon the state secrets privilege would permit a ‘remarkable assertion of power’ by the Executive, and that any practice, no matter how abusive, may be immunized from legal challenge by being labeled as ‘counterterrorism’ and ‘state secrets.’ But such a claim assumes that courts simply rubber stamp the Executive’s assertion of the state secrets privilege. That is not the case here.”

“The Court has engaged in rigorous judicial scrutiny of the Government’s assertion of privilege and thoroughly reviewed the public and classified filings with a skeptical eye. The Court firmly believes that after careful examination of all the parties’ submissions, the present action falls squarely within the narrow class of cases that require dismissal of claims at the outset of the proceeding on state secret grounds,” Judge Carney wrote.

The ACLU of Southern California said it would appeal the decision, the Los Angeles Times reported today.

In a September 2009 policy statement on state secrets, the Attorney General pledged to refer credible claims of wrongdoing that had been dismissed on state secrets grounds to an agency Inspector General for review.  It is unknown whether such a referral has occurred in this case, or indeed if it has ever occurred.  The Department of Justice recently refused to answer a congressional inquiry on the subject.