Litigating the state secrets privilege.

AuthorTien, Lee
PositionSomebody's Watching Me: Surveillance and Privacy in an Age of National Insecurity

The state secrets privilege raises important separation of powers and institutional competence questions, especially for courts. Congress can statutorily modify this common-law evidentiary privilege, which should facilitate judicial management of civil litigation with national security implications. Under the Foreign Intelligence Surveillance Act, for example, district courts are expressly authorized to evaluate the legality of government electronic surveillance in special proceedings. This article describes some of the practical litigation problems that arise even when Congress authorizes courts to review claimed national security secrets in the context of a case alleging that the National Security Agency engaged in unlawful warrantless wiretapping. ([dagger])

  1. INTRODUCTION

    Much has been written about the constitutional issues raised by the Executive's use of the state secrets privilege to frustrate civil litigation over violations of statutory and constitutional rights. (1) However, the epic nature of the theoretical issues of separation of powers and individual rights in the national security context should not distract us from the practical impact of state secrets privilege assertions on litigation even after the case survives multiple motions to dismiss. How are plaintiffs to litigate cases when courts fear that the litigation itself may touch upon state secrets that may, if disclosed, harm national security?

    The Supreme Court seemed to answer this question in the seminal state secrets case United States v. Reynolds, (2) which concerned a tort action for wrongful death arising out of a military airplane crash. Although the Supreme Court found that evidence about electronic devices that were being tested when the plane crashed and killed the plaintiffs' spouses was indeed protected by the state secrets privilege, (3) it nevertheless remanded the case to proceed without the privileged materials. (4) The Court noted that because the surviving crew members were available for examination, "it should be possible for [the plaintiffs] to adduce the essential facts as to causation without resort to material touching upon military secrets." (5)

    Reynolds thus expresses confidence that courts and plaintiffs can manage discovery even when state secrets are involved. Courts nevertheless continue to be perplexed by the actual management of state secrets cases. The Executive's demand that courts "look down the road"--i.e., to evaluate a case far in advance of the normal procedures for developing an evidentiary record--runs contrary to the iterative fact-development process of normal litigation and forces courts to play litigation gatekeeper in difficult circumstances. Even when courts find a reasonable path to navigate, they face practical difficulties in making the normal adversary process work in the face of Executive refusal to provide litigants or their counsel with access to information needed to litigate the case.

    This article tells a cautionary tale of how the Executive refused to accept judicial authority to manage litigation and to grant some level of litigant access in the interests of due process and the federal courts' Article III power to decide cases. Courts and litigants face significant hurdles in actual litigation even when Congress has preempted the state secrets privilege so as to avoid threshold dismissal.

  2. BACKGROUND ON THE STATE SECRETS PRIVILEGE AND THRESHOLD DISMISSAL

    The state secrets privilege prevents discovery of secret evidence when disclosure would threaten national security. Reynolds set forth the basic framework of the privilege: (1) it belongs to the government; (2) it must be properly invoked by means of a "formal claim of privilege, lodged by the head of the department which has control over the matter" after "actual personal consideration;" (6) (3) the court must then "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;" (7) (4) the precise nature, extent, and manner of this inquiry depends in part on the extent of a party's need for the information sought tested against the strength of the government's claim of privilege; (8) and (5) in camera review can be appropriate, but not in all cases. (9)

    When the privilege applies, "the evidence is unavailable, as though a witness had died, and the case will proceed accordingly, with no consequences save those resulting from the loss of the evidence," and with "no alteration of pertinent substantive or procedural rules." (10) Two of these consequences are relatively clear. Litigation may proceed so long as (1) the plaintiffs can still prove "the essential facts" of their claims; (11) and (2) invocation of the privilege does not deprive "the defendant of information that would otherwise give the defendant a valid defense." (12) Otherwise, the case may be dismissed or summary judgment may be granted for the defendant. (13)

    More controversial is the third possible consequence: if the "very subject matter of the action is a state secret," courts often dismiss the plaintiff's action based solely on the invocation of the state secrets privilege. (14) In Mohamed v. Jeppesen Dataplan, (15) which challenged the Central Intelligence Agency's extraordinary rendition program, the Ninth Circuit held that this type of threshold dismissal is not available under Reynolds because "[t]his sweeping characterization of the 'very subject matter' bar has no logical limit" and would "cordon off all secret government actions from judicial scrutiny." (16) Instead, the proper course is to "excis[e] secret evidence on an item-by-item basis, rather than foreclos[e] litigation altogether at the outset." (17) The case is being reheard en banc and under submission as of this writing. (18)

  3. LITIGATION OVER THE WARRANTLESS SURVEILLANCE PROGRAM

    1. Background

      On December 16, 2005, the New York Times reported that in the years following September 11, 2001, President Bush secretly authorized the National Security Agency (NSA) to conduct electronic surveillance on Americans and others without warrants. (19) The Government soon publicly acknowledged that its secret activities had indeed included the warrantless interception of international communications where one party to the communication was believed to have links to al-Qaeda and related terrorist organizations. (20)

      On May 11, 2006, USA Today reported the existence of an NSA program in which some telecommunications carriers were alleged to have provided telephone calling records of tens of millions of Americans to the NSA. (21) The article alleged that BellSouth Corp., Verizon Communications Inc., and AT&T gave the government access to a database of domestic communication records that the NSA uses "to analyze calling patterns in an effort to detect terrorist activity." (22)

      In response to these revelations:

      [D]ozens of lawsuits by customers of telecommunications companies were filed alleging various causes of action related to such cooperation with the NSA in warrantless wiretapping of customers' communications.... The cases typically alleged federal constitutional and statutory violations as well as causes of action based on state law such as breach of contract, breach of warranty, violation of privacy and unfair business practices. (23) The Judicial Panel on Multidistrict Litigation ordered these cases transferred to the Northern District of California in August 2006 and consolidated before U.S. District Judge Vaughn Walker. (24)

      These cases against the telecommunications companies followed a common pattern.

      The United States moved to intervene in the case and simultaneously to dismiss it, asserting the state secrets privilege (SSP) and arguing, in essence, that the SSP required immediate dismissal because no further progress in the litigation was possible without compromising national security. The telecommunications company defendants in the case also moved to dismiss on other grounds. (25) In the first of these cases, decided prior to the MDL transfer, the district court denied the motions to dismiss. (26) All of the cases were eventually dismissed, however, based on section 802 of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISAAA), (27) which "included an immunity provision for the benefit of telecommunications companies that would be triggered if and when the Attorney General of the United States certified certain facts to the relevant United States district court." (28)

    2. The Al-Haramain Case

      While most of these cases were brought against the telecommunications companies themselves, some were brought against the Government and individual government officials. (29) The most notable of these cases was brought by the Al-Haramain Islamic Foundation (30) and two of its individual attorneys, Wendell Belew and Asim Ghafoor. (31)

      The complaint alleged: (1) that the NSA conducted warrantless electronic surveillance of communications between a director or directors of Al-Haramain and the two attorney plaintiffs; (2) that the NSA turned over logs from this surveillance to the Office of Foreign Assets Control (OFAC); and (3) that OFAC then consequently froze Al-Haramain's assets. (32) It alleged "violations of FISA, the First, Fourth, and Sixth Amendments to the United States Constitution, the doctrine of separation of powers, and the International Covenant on Civil and Political Rights." (33)

      Filed under seal with the complaint was a copy of a classified document (the "Sealed Document") that OFAC had inadvertently disclosed to counsel for Al-Haramain as part of a production of unclassified documents relating to Al-Haramain's potential status as a "specially designated global terrorist." (34) The Sealed Document apparently provided evidence that the NSA had, in fact, conducted the alleged electronic surveillance, thus establishing the Al-Haramain...

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