August 3, 2005

Mark S. Zaid, Esq.
(202) 454-2809 (w)


National Security Concerns Sway Court To Nullify EEO Protections

The Fourth Circuit Court of Appeals today affirmed the dismissal of Jeffrey Sterling’s discrimination lawsuit against the Central Intelligence Agency (“CIA”) based on the Government’s invocation of the state secrets privilege. Sterling had served as an Operations Officer with the CIA in its Near East and South Asia Division from 1993-2001. In light of then DCI George Tenet’s request for dismissal on national security grounds, the Fourth Circuit reaffirmed a now widely held position that courts “are neither authorized nor qualified to inquire further” and examine the veracity of the reasons set forth in a Department head’s declaration. This decision reflects an increasing trend of federal courts to give the Executive Branch carte blanche when it comes to national security civil cases, and sends a message to individuals working within the intelligence community that they surrender significant inherent legal rights due to their employment.

Sterling had claimed, among other things, that he was told he was “too big and black” to receive certain CIA assignments, and that CIA management placed expectations on him “far above those required of non-African-American Operations Officers.” He also contended he was even retaliated against for utilizing the CIA’s internal equal employment opportunity process. However, the Fourth Circuit noted that “There is no way for Sterling to prove employment discrimination without exposing at least some classified details of the covert employment that gives context to his claim.”

“This decision reflects yet another example of the disturbingly increasing trend of the Judiciary’s abdication of its responsibility or simple unwillingness to challenge broad national security assertions invoked by the Executive Branch in civil litigation,” said Mark S. Zaid, Sterling’s attorney and the Managing Partner of the Washington, D.C. firm of Krieger & Zaid, PLLC. “It is regrettably patently obvious given the decision that little can be done through the Judiciary to prevent the CIA from committing acts of racial discrimination with impunity,” added Zaid, who routinely handles cases involving national security matters.

Sterling had argued that there were numerous protective steps that the District Court could have taken to ensure classified information was not compromised. This could have included in camera hearings, the submission of all documents for classification review, depositions to be conducted at a CIA facility and waiver of jury proceedings. His counsel, Mark S. Zaid, who is authorized to receive classified information, routinely engages in such steps in both litigation and administrative proceedings while representing intelligence officers, both overt and covert, throughout the world.

But the Fourth Circuit noted that “Sterling’s argument that the court could devise special procedures that would allow his suit to proceed must therefore fail. Such procedures, whatever they might be, still entail considerable risk. Inadvertent disclosure during the course of a trial — or even in camera — is precisely the sort of risk that Reynolds attempts to avoid. At best, special accommodations give rise to added opportunity for leaked information. At worst, that information would become public, placing covert agents and intelligence sources alike at grave personal risk.”

In dismissing the case, the Fourth Circuit concluded “We recognize that our decision places, on behalf of the entire country, a burden on Sterling that he alone must bear. ‘When the state secrets privilege is validly asserted, the result is unfairness to individual litigants — through the loss of important evidence or dismissal of a case — in order to protect a greater public value.’ Yet there can be no doubt that, in limited circumstances like these, the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk.”

“We fully intend to take this fight all the way to the Supreme Court,” stated Zaid, who noted there are at least three other state secret cases pending in federal courts at both the district and appellate levels. “Given the Judiciary’s deliberate ineffectiveness to protect the rights of those who place their lives in jeopardy within the intelligence community, and the Executive Branch’s willingness to exploit this weakness, it is clear that Congress must become involved and enact legislation to create special procedures,” added Zaid.

Sterling’s lawsuit was initially filed pro se in the United States District Court for the Southern District of New York on August 28, 2001. That Court denied the CIA’s request to dismiss the case on national security grounds – an unprecedented decision and one of the only known substantive victories against the state secrets privilege in 50 years – but transferred the case to the United States District Court for the Eastern District of Virginia in January 2003. The case was then dismissed on national security grounds in March 2004, despite the fact that the Court noted that “Sterling could probably prove a prima facia case for race discrimination.”

The State Secrets privilege, which used to be a rarely invoked privilege created by the Supreme Court fifty years ago, is now an increasingly utilized tool by the Executive Branch to obtain the dismissal of civil cases that primarily alleged unlawful conduct by federal agencies. Zaid is also involved in representing Sibel Edmonds, a former FBI contract employee turned whistleblower, whose civil case against the Government was similarly dismissed due to the state secrets privilege. Her Petition for Certiorari to the Supreme Court was coincidently filed today.


Copies of the decisions issued by the Appellate and District Courts, as well as any briefs, are available upon request.

Mark S. Zaid, Esq.
Krieger & Zaid, PLLC
1920 N Street, N.W.
Suite 300
Washington, D.C. 20036