The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation
Released: 2011-08-16T00:00:00

Introduction

The state secrets privilege, primarily a construct of the judiciary that has been derived from common law, is an evidentiary privilege that allows the government to resist court-ordered disclosure of information during civil litigation if there is a reasonable danger that such disclosure would harm the national security of the United States. The privilege belongs to the government alone, and may be invoked only after personal consideration by the head of the department with control over the information. The validity of the claim is then independently evaluated by the court after an inquiry that may require in camera review of the information sought to be protected. If the court determines that the information in question falls under the protection of the state secrets privilege, then the information will be considered unavailable, and the court must determine how or whether the litigation can proceed absent the protected evidence.

In recent years, some have suggested that the privilege has been overused by the executive branch to prevent disclosure of its own questionable, embarrassing, or unlawful conduct—particularly with respect to the "war on terror." In response, the Obama Administration has issued a new policy on the state secrets privilege in an attempt to "strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests." Under the policy established by Attorney General Eric Holder, any decision by an agency to invoke the privilege in litigation must first be reviewed by a State Secrets Review Committee and receive the personal approval of the Attorney General. The new procedures specifically state that the Department of Justice will not defend an invocation of the state secrets privilege to conceal "violations of the law" or "administrative error"; avoid "embarrassment"; or to "prevent or delay the release of information … which would not reasonably be expected to cause significant harm to national security ."

While the state secrets privilege arises in a wide array of cases, recently the privilege has been characterized by a number of high-profile assertions—including invocation of the privilege to defend against claims arising from the government's "extraordinary rendition" practices, challenges to the terrorist surveillance program, and claims against various national security agencies for unlawful employment practices. The government has also intervened and invoked the privilege in a significant number of cases involving claims against government contractors.

This report is intended to present an overview of the protections afforded by the state secrets privilege; a discussion of some of the many unresolved issues associated with the privilege; and, a selection of high-profile examples of how the privilege has been applied in practice.

United States v. Reynolds: The Seminal Case

Although previously established, the Supreme Court first articulated the modern analytical framework of the state secrets privilege in the 1953 case of United States v. Reynolds . That case involved multiple wrongful death claims brought by the widows of three civilians who died aboard a military aircraft that crashed while testing secret electronic equipment. The plaintiffs had sought discovery of the official post-incident report and survivors' statements that were in the possession of the U.S. Air Force. The Air Force opposed disclosure of those documents, as the aircraft and its occupants were engaged in a "highly secret mission of the Air Force" at the time of the crash. The federal district court ordered the Air Force to produce the documents so that it could independently determine whether they contained privileged information. When the Air Force refused to provide the documents to the court, the district court ruled in favor of the plaintiffs on the issue of negligence; the court of appeals subsequently affirmed the district court's ruling.

The Supreme Court reversed. In its opinion, the Court laid out a two-step procedure to be used when evaluating a claim of privilege to protect state secrets. First, "there must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." Second, "the court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect." Ultimately, the Reynolds Court determined that the Air Force's invocation of the privilege was valid and that in camera review of the incident report was not necessary. Importantly, the Court did not dismiss the claims, but rather remanded the case and directed the district court to provide the plaintiffs with the opportunity to pursue their case without the privileged evidence.

Asserting the Privilege

The first requirement identified by the Reynolds Court, the assertion of the privilege, is a largely procedural hurdle to assure that the privilege is not "lightly invoked." Nevertheless, this requirement is readily met through the written assertion of the privilege by the head of the department in control of the information in question after "personal consideration." Furthermore, the privilege belongs exclusively to the government and therefore cannot be validly asserted by a private party. In cases in which the government is not a party, but the nature of the claim is such that litigation could potentially lead to the disclosure of secret evidence that would threaten national security, the government must itself intervene and assert the state secrets privilege. It should be noted, however, that the government's failure to formally assert the privilege has previously been excused because strict adherence to the requirement would have had little or no benefit. Finally, most courts have determined that the privilege may be raised at any time. For instance, the privilege may be raised prospectively at the pleading stage of the litigation, or during discovery in response to specific requests for information.

Evaluating the Validity of the Privilege

In contrast to the requirement that the government formally assert the privilege, the requirement that the court evaluate the validity of the government's claim often "presents real difficulty." Accordingly, the government "bears the burden of satisfying a reviewing court that the Reynolds reasonable-danger standard is met." For example, although the Supreme Court's holding in Reynolds recognized that it is the role of the judiciary to evaluate the validity of a claim of privilege, the Court declined to require that courts automatically compel inspection of the underlying information. As the Court noted, "too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses." Therefore, although the privilege requires some deference to the executive branch, an independent evaluation of the claim of privilege is necessary so as not to abdicate control over evidence "to the caprice of executive officers." In light of this dilemma, the Court chose to chart a middle course, employing a "formula of compromise" to balance the competing interests of oversight by the judiciary, the plaintiffs' need for the evidence, and national security interests. Under this scheme, the privilege should be found valid when a court is satisfied that there is a reasonable danger that disclosure "will expose military matters which, in the interest of national security, should not be divulged."

The thoroughness of a court's review of the government's assertion of the state secrets privilege varies. Generally, the depth of the inquiry corresponds to an evaluation of the opposing party's need for the information and the government's need to prevent disclosure. As part of this balancing, a court may go so far as to require the production of the evidence in question for in camera review. Under other circumstances, however, the nature of the evidence may be such that the court is satisfied that the evidence warrants protection based solely on the executive branch's assertions. No matter the depth of the inquiry, once a court is satisfied that the privilege is valid, it should not further "jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."

Whether a court may be satisfied without examining the underlying information will also be influenced by the amount of deference afforded to the government's representations regarding the evidence in question. In Reynolds , the Court noted that the necessity of the underlying information to the litigation will determine "how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate." In the case of Reynolds , the Court noted that the Air Force had offered to make the surviving crew members available for examination by the plaintiffs. Because of this alternative avenue of information, the Court was satisfied that the privilege was valid based primarily upon representations made by the government regarding the contents of the documents. Conversely, less deference to the government's representations may be warranted where a private litigant has a strong need for the information.

When possible, courts have attempted to "disentangle" privileged evidence from non-privileged evidence. One way to protect privileged information without excluding non-privileged evidence is to redact sensitive portions of a document rather than barring the entire piece of evidence. However, some courts have questioned the prudence of using redaction to protect portions of documents that qualify for protection under the privilege out of a concern that pieces of "seemingly innocuous" information can create a "mosaic" through which protected information may be deduced. The "mosaic theory" is based on the principle that federal judges are not properly equipped to determine which pieces of information, when taken together, could result in the disclosure "of the very thing the privilege is designed to protect." Adherence to the mosaic theory, however, necessarily results in broad deference to the assertions of intelligence agencies.

The Consequences of the Privilege: Expansive or Limited?

If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court. Although a private litigant's need for the information may be relevant to the amount of deference afforded to the government, "even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied" that the privilege is appropriate. Still, a valid invocation of the privilege does not necessarily require dismissal of the claim. In Reynolds , for instance, the Supreme Court did not dismiss the plaintiffs' claims, but rather remanded the case to determine whether the claims could proceed absent the privileged evidence. Yet, significant controversy has arisen with respect to the question of how a case should proceed in light of the successful claim of privilege. Courts have varied greatly in their willingness to either dismiss a claim in its entirety or allow a case to proceed "with no consequences save those resulting from the loss of evidence." Some courts have taken a more restrained view of the consequences of a valid privilege, holding that the privilege protects only specific pieces of privileged evidence; while others have taken a more expansive view, arguing that the privilege, with its constitutional underpinnings, often requires deference to executive branch assertions and ultimate dismissal. Whether the assertion of the state secrets privilege is fatal to a particular suit, or merely excludes privileged evidence from further litigation, is a question that is highly dependent upon the specific facts of the case.

Pursuant to existing state secrets privilege jurisprudence, the valid invocation of the privilege generally may result in the outright dismissal of the case in three circumstances. The first class of cases in which a claim is generally dismissed is those cases in which a plaintiff cannot establish a prima facie case without the protected evidence. For example, in Halkin v. Helms , the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) was confronted with a claim of privilege regarding the National Security Agency's alleged interception of international communications to and from persons who had been targeted by the Central Intelligence Agency (CIA). After deciding that the claim of privilege was valid, the D.C. Circuit affirmed the protection of that information from discovery. Although some non-privileged evidence that the plaintiffs were targeted by the CIA existed, the court dismissed the suit after deciding that without the privileged information, the plaintiffs would not be able to establish a prima facie case of unlawful electronic surveillance.

A case will also generally be dismissed where the privilege deprives a litigant of evidence necessary to establish a valid defense. In Molerio v. Federal Bureau of Investigation , a job seeker alleged that the Federal Bureau of Investigation (FBI) had disqualified him based upon his father's political ties to socialist organizations in violation of the applicant's and his father's First Amendment rights. In response, the FBI asserted that it had a lawful reason to disqualify the plaintiff, but claimed that its reason was protected by the state secrets privilege. After reviewing the FBI's claim in camera , the D.C. Circuit agreed that the evidence of a nondiscriminatory reason was protected and that its exclusion would deprive the FBI of an available defense. Therefore, the dismissal of that action was required once the privilege was determined to be valid.

Subject Matter Dismissal and the Totten Bar in the Context of Extraordinary Rendition

Most courts recognize a controversial third category of cases that requires outright dismissal pursuant to the state secrets privilege. This class of cases includes those where the court determines that the "very subject matter of the case is a state secret," and as a result, "litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets." Dismissals under this theory have led to significant confusion and debate, much of which derives from the proper characterization of an 1876 Supreme Court case entitled Totten v. United States .

Totten involved a breach of contract claim brought against the government by the estate of a former Union Civil War spy for compensation owed for secret wartime espionage services. The Court dismissed the claim noting that "as a general principle [] public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential." Thus, under Totten , controversies over secret espionage contracts may not be reviewed by federal courts. The " Totten bar" was later affirmed in Tenet v. Doe, a Supreme Court case involving a contract claim against the CIA brought by Cold War era spies. Prior to that decision, the exact relevance of the Totten rule in light of the Court's intervening decision in Reynolds was unclear. In Tenet , the Court held that " Totten precludes judicial review in cases such as respondents' where success depends upon the existence of their secret espionage relationship with the government." In reaching its decision, and by limiting Totten to its facts, the Supreme Court arguably affirmed the distinction between the Totten bar and the Reynolds privilege—holding that the Totten rule had not been "reduced to an example of the state secrets privilege," and that " Reynolds therefore cannot be plausibly read to have replaced the categorical Totten bar with the balancing of the state secrets evidentiary privilege in the distinct class of cases that depend upon clandestine spy relationships." Therefore, disputes over contracts for espionage appear to remain a special category of cases over which the courts have no jurisdiction, and therefore must be "dismissed on the pleadings without ever reaching the question of evidence."

The relationship between the Totten bar and the Reynolds privilege may be interpreted in a number of different ways. Some courts have attempted to maintain a strict differentiation between Totten and Reynolds —limiting the severe consequences of the Totten bar to only those cases which involve proving the existence of a clandestine spy relationship with the federal government. Other courts have arguably "conflated" the two doctrines. Still others distinguish between Totten and Reynolds , while interpreting Totten to have broader application beyond spy contracts, resulting in a "continuum of analysis" that requires dismissal under the privilege where "the case cannot be litigated without presenting either a certainty or an unacceptable risk of revealing state secrets."

Recent cases from the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) and the U.S. Court of Appeals for the Ninth Circuit can be viewed as exemplifying the varied conclusions federal courts have reached in ostensibly similar cases. Both cases involved civil claims against various government officials and private transportation companies associated with the government's extraordinary rendition program. "Extraordinary rendition" has been described as a program administered by the CIA "to gather intelligence by apprehending foreign nationals suspected of involvement in terrorist activities and transferring them in secret to foreign countries for detention and interrogation." El-Masri v. United States involved a claim by Khaled El-Masri against the CIA and a number of private transportation companies, alleging that the defendants unlawfully detained and interrogated him in violation of the U.S. Constitution and international law. El-Masri, a German citizen, alleged he had been detained in Macedonia; turned over to the CIA; flown to Afghanistan, where he was held in a CIA facility; and then flown to Albania, where he was released. During his ordeal, El-Masri also alleged he was "beaten, drugged, bound, and blindfolded during transport; confined in a small, unsanitary cell; interrogated several times, and consistently prevented from communicating with anyone outside the detention facility."

Mohamed v. Jeppesen Dataplan involved a claim by five plaintiffs against a subsidiary of Boeing for violations of the Alien Tort Statute stemming from the company's role in providing transportation services for the extraordinary rendition program. The plaintiffs alleged that Jeppesen Dataplan Inc. "provided flight planning and logistical support services to the aircraft and crew on all of the flights transporting the five plaintiffs among their various locations of detention and torture." In both El- Masri and Jeppesen , the government asserted the state secrets privilege and argued that the suits should be dismissed because the issues involved in the lawsuits could not be litigated without risking disclosure of privileged information.

In El-Masri , the Fourth Circuit, citing both Totten and Reynolds , asserted that "the Supreme Court has recognized that some matters are so pervaded by state secrets as to be incapable of judicial resolution once the privilege has been invoked." Although the court recognized that Totten has "come to primarily represent a somewhat narrower principal—a categorical bar on actions to enforce secret contracts for espionage," the court concluded more broadly that Totten rested on the general proposition that "a cause cannot be maintained if its trial would inevitably lead to the disclosure of privileged information." In the court's opinion, any attempt by El-Masri to prove or disprove the allegations in the complaint would necessarily involve disclosing the internal organization and procedures of the CIA, as well as secret contracts with the transportation companies. The circuit court thus determined that because the "central facts … that form the subject matter of El-Masri's claim [] remain state secrets," the court was required to dismiss the suit upon the successful invocation of the privilege by the government. The Supreme Court declined to review the El-Masri decision.

It is also important to note that in reaching its decision, the Fourth Circuit emphasized the notion that the state secrets privilege performs a "function of constitutional significance." Prior to the El-Masri case, the privilege had traditionally been characterized as a common law evidentiary privilege, rather than a constitutionally based doctrine. The Fourth Circuit opinion, however, contained express language asserting that the state secrets privilege "has a firm foundation in the Constitution."

In contrast, in Mohamed v. Jeppesen Dataplan , a Ninth Circuit panel initially held that the state secrets privilege only excluded privileged evidence from discovery or admission at trial, and did not require the dismissal of the complaint at the pleadings stage. While the court recognized that the exclusion of privileged evidence from discovery might ultimately be fatal to the litigation if it prevented the plaintiffs from establishing a prima facie case or denied the defendant a valid defense, the Jeppesen court held that dismissal of a suit on the pleadings based on the "very subject matter" of the privileged information was not warranted, except in the narrow case of contracts for espionage barred under Totten .

In characterizing Totten and Reynolds , the Ninth Circuit noted that "two parallel strands of the state secrets doctrine have emerged from its relatively thin history." The opinion clearly distinguished between the Reynolds privilege and the Totten bar, recognizing that dismissal under the Reynolds privilege was only proper when the privileged evidence prevented the plaintiff from establishing a prima facie case, or the defendant from establishing a valid defense. "Neither does any Ninth Circuit or Supreme Court case law," concluded the court, "indicate that the 'very subject matter' of any other kind of law suit is a state secret, apart from the limited factual context of Totten itself." Limiting Totten to its facts, the Ninth Circuit panel refused to countenance any expansion of " Totten's uncompromising dismissal rule beyond secret agreements with the government."

Upon en banc review, however, the panel decision was overturned by a vote of 6-5. While criticizing the Fourth Circuit's decision in El-Masri as an "erroneous conflation" of the Totten bar's "very subject matter" inquiry with the Reynolds privilege, and expressly criticizing Totten as an ambiguous "judge-made doctrine with extremely harsh consequences," the court determined that dismissal was nonetheless required under Reynolds , and not Totten , as there was "no feasible way to litigate Jeppesen's alleged liability without creating an unjustifiable risk of divulging state secrets."

In recognizing this third category of cases requiring dismissal under Reynolds , the Ninth Circuit noted that there exists a point in which "the Reynolds privilege converges with the Totten bar," to form a "continuum of analysis." According to the court, included in the circumstances under which Reynolds merges with Totten is any case in which litigation would potentially result in an "unacceptable risk of disclosing state secrets." Plaintiff's petition for certiorari is currently pending before the Supreme Court.

Much confusion remains with respect to the amount of deference owed to the executive branch once the state secrets privilege is invoked, as well as in determining the proper consequences of a valid assertion of the privilege. Specifically, courts and commentators continue to disagree as to the relationship between the Totten bar and the Reynolds privilege and the resulting question of whether a successful assertion of the privilege requires dismissal of a given claim, or simply the exclusion of privileged evidence—allowing the party to proceed with his claim through the submission of other available evidence.

The Supreme Court's Most Recent View

The 2010-2011 term saw the Supreme Court hear its first state secrets privilege case since the 2005 case of Tenet v. Doe . In General Dynamics Corporation v. United States , the federal government validly asserted the privilege to prevent the disclosure of sensitive stealth technology in a defense contract dispute with a government contractor. However, in addition to asserting the privilege, the government also sought the return of progress payments made to the contractor. The complex factual scenario is discussed in greater length infra , however it is important to note that the case focused on the consequences of a valid privilege in situations where the privilege acts to inhibit a party's ability to defend against the government's breach of contract claim. Although the case was more a contract remedy case than a state secrets privilege case, the opinion contained potentially important language with respect to the evidentiary foundation of the privilege and the scope of the Totten rule.

The General Dynamics opinion contained language suggesting a reaffirmation of the Court's view that the Reynolds privilege is based in the law of evidence rather than in the Constitution. The Court expressly stated that " Reynolds was about the admission of evidence. It decided a purely evidentiary dispute by applying evidentiary rules." The Court also clearly established that the legal theory of nonjusticiability behind Totten and Tenet did not solely apply to cases involving secret espionage contracts. In citing the two espionage contract cases , rather than Reynolds, as the applicable authority in the case, the Court stated: "We think a similar situation obtains here, and that the same consequence should follow." In extending Totten into this new context and in refusing to find an enforceable contract, the Court held that "where liability depends upon the validity of a plausible ... defense, and when full litigation of that defense 'would inevitably lead to the disclosure of' state secrets, neither party can obtain judicial relief." The Court also cited Totten in noting that "[b]oth parties—the government no less than petitioners—must have assumed the risk that state secrets would prevent the adjudication of claims of inadequate performance."

Other Examples of the State Secrets Privilege in Practice

The United States has invoked the state secrets privilege in a wide array of cases, many of which have resulted in the outright dismissal of the plaintiffs' claims. This section of the report provides a brief overview of a selection of recent, high-profile uses of the privilege.

Terrorist Surveillance Program

The state secrets privilege has played a large role in litigation arising from the Terrorist Surveillance Program (TSP). The TSP was a Bush Administration program that authorized the National Security Agency (NSA) to intercept various communications involving U.S. persons within the United States without first obtaining warrants under the Foreign Intelligence Surveillance Act (FISA). FISA provides a statutory framework for government agencies to seek an order from the specialized Foreign Intelligence Surveillance Court that authorizes the collection of foreign intelligence information via electronic surveillance. After the program was revealed in 2005, dozens of claims were filed challenging its legality. Most of these claims were filed against private telecommunications companies that had assisted the NSA by providing the agency with telephone communication records, while others were filed against the NSA itself and individual government officials. Given the sensitive nature of NSA's surveillance activities, the federal government intervened in a majority of these cases, invoked the state secrets privilege, and asked that the cases be dismissed. These early assertions of the privilege saw little success. For example, in Hepting v. AT&T Corp ., the district court denied the government's motion to dismiss under the state secrets privilege. The court reasoned that the Totten bar was inapplicable under the facts of the case and that the "very subject matter" of the case was "hardly a secret." The court noted that because of the broad public disclosures by AT&T and the government relating to the TSP, it could not be concluded "that merely maintaining this action creates a 'reasonable danger' of harming national security." The court would not "defer to a blanket assertion of secrecy."

In 2008, however, Congress passed the FISA Amendments Act (FAA), which granted the telecommunications companies retroactive immunity for assistance provided to NSA under the TSP. Accordingly, federal courts have dismissed most of the TSP-related claims filed against telecommunications companies pursuant to the protections provided in the FAA.

Challenges to the TSP program filed against the NSA or government officials, however, were not impeded by the immunity granted to telecommunications companies under the FAA. Perhaps the preeminent existing challenge to the TSP is Al-Haramain Islamic Foundation v. Bush . Al-Haramain involves a claim by a Muslim charity—designated as a terrorist organization by the United Nations—alleging that the NSA had unlawfully intercepted communications through the TSP and provided those records to the Office of Foreign Assets Control (OFAC), which subsequently froze Al-Haramain's assets in violation of statutory, constitutional and international law. Whereas other plaintiffs had struggled to obtain standing to challenge the TSP, OFAC had inadvertently provided Al-Haramain with a secret document that allegedly proved that the foundation had been subject to NSA surveillance. In response to the complaint, the government asserted the state secrets privilege both narrowly, with respect to the top secret document, and generally, arguing that the case must be dismissed as the "very subject matter" of the proceeding was a state secret.

On an interlocutory appeal, the Ninth Circuit rejected the government's motion to dismiss the case on the grounds that the subject matter of the claim was a state secret, but accepted the government's assertion of the privilege with respect to the top secret document inadvertently disclosed to Al- Haramain. The court held that enough was known about the TSP, including confirmation of the program by a number of government officials, that "the subject matter of Al-Haramain's lawsuit can be discussed … without disturbing the dark waters of privileged information." Thus dismissal under the state secrets privilege at such an "early stage" was not warranted. However, after in camera review of the top secret document, the court concluded that "disclosure of information concerning the [secret document] … would undermine the government's intelligence capabilities and compromise national security," therefore the document itself was protected by the privilege and unavailable to the plaintiffs.

While the court in Al-Haramain did not dismiss the case under the state secrets privilege, it did determine that without the top secret document, the plaintiffs could not show the "concrete and particularized" injury necessary to establish standing. In short, without the secret document, Al-Haramain could not prove that it had actually been a subject of TSP surveillance. The court therefore dismissed the claim for lack of standing, but left open the important question of whether certain FISA provisions superseded and preempted the state secrets privilege.

FISA, Preemption, and the TSP

In addition to providing the framework for the authorized collection of foreign intelligence information via electronic surveillance, FISA also provides a civil remedy for an "aggrieved person ... who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used" in violation of federal law. When evaluating the legality of a FISA order, the statute states that the court

shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.

The Ninth Circuit noted that FISA, "unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance 'was lawfully authorized and conducted.'" Were FISA to preempt the state secrets privilege, Al-Haramain would likely be able to proceed with its claim, as the necessary portions of the secret document would no longer be considered unavailable. Noting that the preemption question was "central to Al-Haramain's ability to proceed with the lawsuit," the court remanded the case to the district court to determine whether FISA preempts the state secrets privilege.

On remand, the Federal District Court for the Northern District of California held that the FISA procedures, which the court read as requiring judicial examination of the actual underlying information, superseded the judicially created state secrets privilege as it is described in Reynolds , but only if the plaintiffs could demonstrate that they had standing as "aggrieved persons" under FISA. Therefore, before FISA's preemption of the privilege would be triggered, the plaintiffs would first need to prove, without reference to the privileged secret document, that they were "aggrieved persons." In January 2009, the district court found that the plaintiffs had successfully met that burden through non-privileged evidence and could thus proceed with discovery under FISA, which took precedence over the state secrets privilege. After a period of significant resistance by the government in which "defendants denied plaintiffs counsel access to any classified filings in the litigation," on March 31, 2010, the court granted summary judgment to the plaintiffs—based on available non-classified evidence—finding that the federal government had violated the statutory requirements of FISA and engaged in the unlawful surveillance of the plaintiffs.

Government Contractors

The United States commonly intervenes in civil claims brought against government contractors, especially military contractors, in order to protect state secrets. For example, the federal government intervened and asserted the privilege in a 2008 tort case against Raytheon brought by the estate of a deceased U.S. Navy lieutenant.

In White v. Raytheon , the wife of Navy combat pilot Nathan White alleged that a malfunction in Raytheon's Patriot Air & Missile Defense System was responsible for the death of her husband, who had been killed when a wayward Patriot missile struck his F/A-18 fighter plane. During discovery, the United States intervened to assert the privilege through a declaration filed by the Secretary of the Army. The declaration asserted that any disclosure of "technical information regarding the design, performance, functional characteristics, and vulnerabilities, of the PATRIOT Missile system" along with any disclosure of the "rules of engagement authorized for, and military operational orders applicable" to the missile system would jeopardize national security. The Secretary also provided the court with a classified supplemental declaration that further elaborated on the impact of the disclosure of information specific to the case. After in camera review of the supplemental declaration, the district court judge held that though the plaintiff could potentially make out a prima facie case absent the privileged information, "I see no practical means by which Raytheon could be permitted to mount a fair defense without revealing state secrets." The court thus concluded that it had "no alternative but to order the case dismissed."

The Supreme Court heard oral arguments on January 18, 2011, in a separate government contractor case involving the invocation of the state secrets privilege by the federal government. The complex case pertains to the consequences of a valid claim of privilege in cases where the assertion of the privilege acts to inhibit a party's ability to defend against an action of the federal government. The combined cases of General Dynamics v. U.S and Boeing v. U.S involve a contract entered into in 1988 to design and build a new stealth capable, carrier-based A-12 Avenger. By 1990, however, the contractors had fallen behind in the project by missing required deadlines, which resulted in the Navy terminating the contract in 1991. As a result of the default termination, the Navy demanded that the contractors return $1.35 billion in progress payments. Although the Navy terminated the contract, it is important to note that it was the contractors who initiated the present litigation with a suit under the Contract Disputes Act. Filed with the U.S. Court of Federal Claims, the contractors' suit argued that a lack of cooperation and support from the Pentagon had caused the project delays—resulting in a termination of convenience, rather than a termination for default. The contractors asked the court to deny the government's demand for the return of the $1.35 billion in progress payments and award the contractors certain damages. The Navy maintained that the contract was terminated due to default by the contractors.

One of the contractors' chief arguments was that by not providing the companies access to its existing stealth technology, as it had allegedly promised, the Navy had breached its duty to "disclose critical information to a contractor that is necessary to prevent the contractor from unknowingly pursuing a ruinous course of action." By withholding its "superior knowledge" of stealth technology, the contractors asserted, it was the Navy that had caused the default. In support of this "superior knowledge" argument, the contractors sought to obtain evidence relating to that technology. The federal government responded by invoking the state secrets privilege, arguing that "the government could not have an implied duty to reveal classified information pertinent to the A-12 program that would threaten national security." Both the Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit accepted the claim of privilege and barred evidence of the Navy's stealth technology from the litigation. Without the privileged evidence, the contractors' "superior knowledge" defense was rejected. Ultimately, after a series of decisions by the Court of Federal Claims and the Federal Circuit, the Federal Circuit determined that the federal government had properly terminated the contract for default. The government subsequently asked for the return of the $1.35 billion in progress payments plus appropriate interest.

The Supreme Court vacated and remanded the Federal Circuit's decision. The Court had granted a writ of certiorari to consider the question of "whether the government can maintain its claim against a party when it invokes the state secrets privilege to completely deny that party a defense to a claim." Thus, in holding that neither the government's claim nor the contractors' defense could be "judicially determined" in light of the valid assertion of the privilege, the Court's opinion focused solely on the consequence of the invocation of the privilege in the context of this case, rather than an examination of whether the invocation of the privilege was proper. In crafting a remedy, the Court looked to Totten and Tenet in determining that the parties must be left "where they stood when they knocked on the courthouse door." As the Court had previously done in refusing to enforce espionage contracts, "rather than tempt fate, we leave the parties ... where we found them the day they filed suit." Thus the government could not claim the $1.35 billion in progress payments, nor could the contractor pursue its claim for damages under the theory that "superior knowledge" was withheld. The Court also included language in an attempt to limit the future application of the opinion in the state secrets context, declaring: "Our decision today clarifies the consequences of [the privilege's] use only where it precludes a valid defense in Government-contracting disputes, and only where both sides have enough evidence to survive summary judgment but too many of the relevant facts remain obscured by the state-secrets privilege to enable a reliable judgment."

Employment Cases

The state secrets privilege also arises in employment-related claims against national security agencies. The federal government has generally argued that these cases threaten to disclose "intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments." Sterling v. Tenet , for example, involved a racial discrimination claim brought against the Director of the CIA. Under the facts of the case, Jeffrey Sterling, a CIA Operations Officer, alleged that he was subject to unlawful discriminatory practices during his employment at the CIA in violation of Title VII of the Civil Rights Act. In response, the CIA invoked the state secrets privilege and asked the district court to dismiss the case, relying on an affidavit submitted by CIA Director George Tenet, alleging that litigating the factual issues of the claim would "compromise CIA sources and methods, threaten the safety of intelligence sources, and adversely affect foreign relations." The district court granted the CIA's motion to dismiss, concluding that the state secrets privilege "barred the evidence that would be necessary to state a prima facie claim."

On appeal, the Fourth Circuit upheld the dismissal. The court asserted that Sterling could not prove employment discrimination "without exposing at least some classified details of the covert employment that gives context to his claims." In dismissing the claim, the Fourth Circuit, as it did in El-Masri , took a broad view of the consequences of a claim in which the "very subject matter" is itself a state secret, holding that "dismissal follows inevitably when the sum and substance of the case involves state secrets."

Targeted Killing

Another recent invocation of the state secrets privilege has come in the context of the United States alleged policy on targeted killings. In Al-Aulaqi v. Obama , the father of a U.S.-born Yemeni cleric and Specially Designated Global Terrorist, brought a claim against the federal government challenging his son's alleged inclusion on a supposed CIA target kill list. The plaintiff argued that inclusion on the CIA list meant his son was subject to a "standing order" that permits the CIA or [Joint Special Operations Command] to kill him without regard to whether lethal force was lawful under the circumstances in violation of the Fourth and Fifth Amendments of the U.S. Constitution. The federal government responded by arguing that the plaintiff lacked standing to bring the claim on behalf of his son; that the claim was barred by the political question doctrine; and, in the alternative, that the claim should be dismissed under the state secrets privilege on the grounds that evidence protected by the privilege "would be necessary to litigate each of plaintiff's claims."

In support of the government's claim of privilege, the Director of National Intelligence, the Director of the Central Intelligence Agency, and the Secretary of Defense submitted declarations asserting that disclosure of certain evidence connected to the case could cause "exceptionally grave damage to the national security of the United States." Specifically, the government asserted that the litigation could lead to the disclosure of "information needed to address whether or not, or under what circumstances, the United States may target a particular foreign terrorist organization and its senior leadership" and "criteria governing the use of lethal force." In addition to the public declarations, the government also provided the court with supplemental confidential declarations for in camera review.

The district court ultimately dismissed the case for lack of standing and nonjusticiability under the political question doctrine without reaching the state secrets privilege claim. However, the court seemed to imply that dismissal would have been warranted under the privilege. In dicta, the court noted that "given the nature of the state secrets assessment here based on careful judicial review of classified submissions to which neither plaintiff nor his counsel have access, there is little that plaintiff can offer with respect to this issue."

Terrorist Screening Database

The state secrets privilege has also arisen in claims associated with the Terrorist Screening Database (TSDB). For example, a federal district court rejected the government's claim of privilege in a 2008 case entitled Rahman v. Chertoff . Rahman involved a claim by a class of plaintiffs for wrongful detention stemming from repeated encounters with law enforcement while crossing the border. In an effort to prove that they were "misidentified" or "overclassified," the plaintiffs sought to obtain evidence proving their existence in the TSDB. Citing national security concerns, the federal government asserted the privilege with respect to any information "tending to confirm or deny whether the plaintiffs are now or ever have been listed in the TSDB." In support of the claim, the government argued that if an individual who was engaged in terrorist activity had knowledge of whether he was included on the TSDB that person may "alter the nature or extent of his terrorism-related activity, or take new precautions against surveillance ... change his appearance or acquire false identification to avoid detection ... [or] even go into hiding."

The federal district court rejected the government claim of privilege and ordered that the information related to the TSDB be disclosed to plaintiffs pursuant to a protective order. In reaching its decision, the court determined that the plaintiffs had made a strong showing of necessity to obtain the information and that defendants had "failed to establish that, under all the circumstances of this case, disclosure of that information would create a reasonable danger of jeopardizing national security." The court noted that the government had raised only "general concerns" and refused to accept the government's assertion that that knowledge of ones TSDB status would allow one to alter their activity so as to avoid surveillance. The court concluded that where a plaintiff has "been stopped at border entries on numerous occasions ... there is little force to the argument that revealing their TSDB status will alert [the plaintiff] for the first time that they have been under government scrutiny. [W]e expect that plaintiffs who have been repeatedly stopped when entering the border have been alerted to the fact that they are or may be of interest to the FBI or other governmental investigative authorities."

Conclusion

The federal courts continue to wrestle with the precise contours of the state secrets privilege. Although the privilege has been invoked in a significant number of cases in a range of areas of the law, a variety of important questions have yet to be resolved in an authoritative manner. Unsettled issues include whether the state secrets privilege is more accurately defined as a common law evidentiary privilege or a constitutional doctrine; the degree of deference to be accorded to the executive branch during a court's independent evaluation of an assertion of the privilege; the circumstances under which a valid claim of privilege must result in outright dismissal as opposed to allowing the claim to proceed absent the privileged evidence; and, finally, the scope of Totten and the nature of the relationship between the Reynolds privilege and the Totten bar.