State Secrets Privilege
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The State Secrets Privilege is an evidentiary rule, created by United States legal precedent, which allows the federal government to prevent the disclosure of information which may be detrimental to national security in legal proceedings.
Since the September 11, 2001 attacks, it has been invoked several times to stay proceedings.
According to an unnamed study, it has been invoked 60 times since it was originally founded in the 1950s during the Cold War, and it was only denied by a judge on five occasions, causing its critics to claim that it is rarely challenged and represents a "free pass" for the federal government.
The privilege was first recognized by the U.S. Supreme Court in a 1953 decision, United States v. Reynolds (345 U.S. 1), although that case develops on the legal foundation established in an earlier case Totten v. United States 92 U.S. 105 (1875), raised by a plaintiff suing for payment of spying services performed during the U.S. civil war, was dismissed.
After the privilege is properly invoked, the privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.
In 2001, George W. Bush created a controversy by extending the accessibility of the State Secrets Privilege to allow former Presidents, their designated representatives, or representatives designated by their families, to invoke it to bar records from their tenure, through Executive Order 13233.
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[edit] Examples of Instances of Use
[edit] United States v. Reynolds
In United States v. Reynolds (1953), the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The Supreme Court ruled that the executive branch could bar evidence from the court which they had deemed a threat to national security. In 2000, the accident reports in question were declassified and released, and were found to contain no secret information. They did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case.
[edit] Nira Schwartz
The privilege was invoked in Schwartz vs. TRW (Civil No. 96-3065, Central District, Cal) a Qui-Tam claim by Schwartz. Intervention and assertion of the state secrets privilege, by the government, resulted in case dismissal.
[edit] Notra Trulock
In February 2002 it was invoked in the case of Notra Trulock, who launched a defamation suit against Los Alamos scientist Wen Ho Lee, charged with stealing nuclear secrets; President Bush stated that national security would be compromised if Trulock were allowed to seek damages from Lee; though it resulted in the case being dismissed, another suit was launched directly attacking then-FBI Director Louis Freeh for interfering and falsely invoking the State Secrets Privilege.
[edit] Sibel Edmonds
The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower.
[edit] Maher Arar
The privilege was invoked against a case where Maher Arar, a wrongfully-accused and tortured victim sought to sue Attorney General John Ashcroft for his role in deporting Arar to Syria to face torture and extract false confessions. It was formally invoked by Deputy Attorney General James B. Comey in legal papers filed in the Eastern District of New York. The invocation read "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.
[edit] Thomas Burnett
The privilege was invoked in Thomas Burnett vs. Al Barka Investment & Development Corporation (Civil No. 04ms203) a motion to quash a subpoena for the testimony of Sibel Edmonds. The government's motion to quash based on state secrets privilege was granted in part.
[edit] Crater Corporation
The privilege was invoked in the United States Court of Appeals for the Federal Circuit case of Crater Corporation vs. Lucent Technologies Inc. and AT&T Company, (Crater Corp. v. Lucent Technologies, September 7, 2005). Crater was prevented from proceeding with discovery in its patent infringement case (U.S. Patent No. 5,286,129) by the United States' assertion that discovery could cause "extremely grave damage to national security". The infringement case centered on WetMate underwater fiber optic coupling devices beneath the sea.
[edit] Khalid El-Masri
In May of 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. [1]. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. [2]
[edit] AT&T and NSA Wire-Tap case
In April 2006, the Bush administration took initial steps to use the state secrets rule to block a lawsuit against AT&T and the National Security Agency brought by the Electronic Frontier Foundation. The EFF alleged that the government has secret computer rooms conducting broad, illegal surveillance of U.S. citizens.
[edit] ACLU vs. NSA/CIA
On May 26, 2006, the U.S. Justice Department filed a motion to dismiss the ACLU's lawsuit against the NSA by invoking the state secrets privilege. On July 26, 2006, the case was dismissed. In a different case in Michigan, brought by the ACLU against the NSA on behalf of various scholars, journalists, attorneys, and national non-profit organizations, Judge Anna Diggs Taylor ruled on August 17, 2006, that the program was unconstitutional and should be halted. She upheld the doctrine, but ruled that the government's public statements concerning the operation were admissible and constituted sufficient proof for the case to continue without any privileged evidence or discovery.
[edit] Center for Constitutional Rights et al v. Bush et al
On May 27, 2006 the Justice Department moved to preempt the Center for Constitutional Rights (CCR) challenge to warrantless domestic surveillance by invoking the state secrets privilege. The Bush Administration is arguing that CCR's case could reveal secrets regarding U.S. national security, and thus the presiding judge must dismiss it without reviewing the evidence.
[edit] Jane Doe
On January 4, 2007 District Court Judge Laura Taylor Swain ordered the dismissal of Jane Doe et al. v. CIA, 05 Civ. 7939 based on the state secrets privilege. Jane Doe and her children sued the CIA for money damages after her husband's covert employment with the CIA was "terminated immediately for unspecified reasons". A copy of the order can be downloaded here [3].
[edit] Quotes
- "Because it is so powerful and can trample legitimate claims against the government, the state secrets privilege is not to be lightly invoked" - (United States v. Reynolds, 345 U.S. 1, 7 (1953)) [4]
- "The state secrets privilege is a common law evidentiary rule that allows the government to withhold information from discovery when disclosure would be inimical to national security." - Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991).
