The State Secrets Doctrine and the Hatfill Case

In an unusual legal maneuver, the New York Times invoked the “state secrets” doctrine last month in a motion to dismiss the libel suit brought against it by Steven J. Hatfill, the former Army scientist who said he was erroneously linked by the Times to the 2001 anthrax attacks.

The case was dismissed on January 12, 2007 on other grounds (to be spelled out in an opinion that has not yet been published).

But in a sealed motion (pdf) on December 29, the New York Times argued that the classification restrictions imposed on the case were tantamount to an assertion of the state secrets privilege. Times attorneys cited the case law on state secrets to support their argument that the case should be dismissed.

The “state secrets” doctrine, they said, “precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is… necessary to support a valid defense. Dismissal is warranted in this case because the Times has been denied access to such evidence, specifically documents and testimony concerning the work done by plaintiff [Hatfill] on classified government projects relating to bioweapons, including anthrax.”

“It would be manifestly unjust and improper to require the Times to defend against the claims being advanced by Steven Hatfill without affording it access to critical information concerning his own activities that could serve to defeat those claims.”

“The government has not formally intervened in this case to assert the [state secrets] privilege, as it has typically done in analogous cases,” the Times acknowledged in an accompanying memorandum of law (pdf).

“Nevertheless, … it is now evident that the government has in fact invoked the privilege through ex parte evidentiary submissions by DOD, the Department of Justice and the CIA establishing that information concerning projects worked on by plaintiff and his colleagues were properly ‘classified’,” the Times’ attorneys claimed.

A redacted copy of the December 29 New York Times Memorandum of Law in Support of Defendant’s Motion for an Order Dismissing the Complaint Under the “State Secrets” Doctrine was obtained by Secrecy News.

Attorneys for Dr. Hatfill filed a sealed response on January 12 in opposition to the motion for dismissal on state secrets grounds. A redacted copy of their opposition was not immediately available.