Some State Secrets Cases May Stay Secret

05.23.16 | 3 min read | Text by Steven Aftergood

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.