FAS

Court Requires Review of State Secrets Documents

09.16.14 | 3 min read | Text by Steven Aftergood

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….”

 

publications
See all publications
Nuclear Weapons
Blog
New Voices on Nuclear Weapons Fellowship: Creative Perspectives on Rethinking Nuclear Deterrence 

To empower new voices to start their career in nuclear weapons studies, the Federation of American Scientists launched the New Voices on Nuclear Weapons Fellowship. Here’s what our inaugural cohort accomplished.

11.28.23 | 3 min read
read more
Science Policy
Article
Expected Utility Forecasting for Science Funding

Common frameworks for evaluating proposals leave this utility function implicit, often evaluating aspects of risk, uncertainty, and potential value independently and qualitatively.

11.20.23 | 11 min read
read more
Nuclear Weapons
Report
Nuclear Notebook: Nuclear Weapons Sharing, 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 […]

11.17.23 | 1 min read
read more
Social Innovation
Blog
Community School Approach Reaches High of 60%, Reports Latest Pulse Panel

According to the National Center for Education Statistics’ August 2023 pulse panel, 60% of public schools were utilizing a “community school” or “wraparound services model” at the start of this school year—up from 45% last year.

11.17.23 | 4 min read
read more