Amicus Curiae Brief — United States, Petitioner v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, et al.
Supreme Court briefAug 20, 2021
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No. 20-827
IN THE
Supreme Court of the United States
UNITED STATES OF AMERICA,
Petitioner,
v.
ZAYN AL-ABIDIN MUHAMMAD HUSAYN,
A.K.A. ABU ZUBAYDAH, ET AL.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
BRIEF OF AMICUS CURIAE
PUBLIC CITIZEN
IN SUPPORT OF RESPONDENTS
WENDY LIU
Counsel of Record
ALLISON M. ZIEVE
SCOTT L. NELSON
PUBLIC CITIZEN
LITIGATION GROUP
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
wliu@citizen.org
Attorneys for Amicus Curiae
August 2021
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICUS CURIAE ............................ 1
SUMMARY OF ARGUMENT .................................... 1
ARGUMENT ............................................................... 2
I.
The courts play an important role in assessing
government claims of secrecy. ............................. 2
II. In many instances, the government has made
wrongful assertions to support withholding
of information. ...................................................... 9
A. The government has asserted the state
secrets privilege over information that
was not a state secret. ................................... 9
B. The government has made non-meritorious
claims to secrecy in other contexts.............. 17
III. The decision below correctly recognized that the
government’s privilege claim must be critically
examined and that nonprivileged information
must be disentangled and disclosed wherever
feasible. ............................................................... 26
CONCLUSION.......................................................... 28
ii
TABLE OF AUTHORITIES
Cases
Page(s)
Al-Haramain Islamic Foundation, Inc. v. Bush,
507 F.3d 1190 (9th Cir. 2007) ......................... 5, 13
American Civil Liberties Union v. FBI,
429 F. Supp. 2d 179 (D.D.C. 2006) ..................... 24
American Civil Liberties Union v. Brown,
619 F.2d 1170 (7th Cir. 1980) ....................... 14, 15
American Civil Liberties Union v. FBI,
59 F. Supp. 3d 584 (S.D.N.Y. 2014) .................... 23
Arar v. Ashcroft,
585 F.3d 559 (2d Cir. 2009) ............................... 3, 8
Cause of Action Institute v. Export-Import Bank of
the United States,
No. 19-cv-1915 (JEB), 2021 WL 706612
(D.D.C. Feb. 23, 2021) ......................................... 24
Citizens for Responsibility & Ethics in
Washington v. DOJ, __ F. Supp. 3d ___,
No. CV 19-1552 (ABJ), 2021 WL 2652852
(D.D.C. May 3, 2021) ..................................... 21, 22
Citizens for Responsibility & Ethics in
Washington v. GSA,
No. CV 18-2071 (CKK), 2021 WL 1177797
(D.D.C. Mar. 29, 2021) ........................................ 23
Edmonds v. DOJ,
323 F. Supp. 2d 65 (D.D.C. 2004),
aff’d, 161 F. App’x 6 (D.C. Cir. 2005) .............. 6, 19
Ellsberg v. Mitchell,
709 F.2d 51 (D.C. Cir. 1983) ..................... 5, 12, 25
iii
Fitzgerald v. Penthouse International, Ltd.,
776 F.2d 1236 (4th Cir. 1985) ............................. 25
Halkin v. Helms,
598 F.2d 1 (D.C. Cir. 1978) ............................... 7, 8
Hepting v. AT&T Corp.,
439 F. Supp. 2d 974 (N.D. Cal. 2006) ......... 6, 8, 14
Ibrahim v. Department of Homeland Security,
62 F. Supp. 3d 909 (N.D. Cal. 2014) ............. 15, 16
Islamic Shura Council of Southern California v.
FBI,
278 F.R.D. 538 (C.D. Cal. 2011) .......................... 22
Islamic Shura Council of Southern California v.
FBI,
757 F.3d 870 (9th Cir. 2014) ............................... 23
Islamic Shura Council of Southern California v.
FBI,
779 F. Supp. 2d 1114 (C.D. Cal. 2011)................ 22
Korematsu v. United States,
323 U.S. 214 (1944) ............................................... 4
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) ...................... 5
Lurie v. Department of Army,
970 F. Supp. 19 (D.D.C. 1997) ............................ 24
Marbury v. Madison,
5 U.S. 137 (1803) ................................................... 3
Mitchell v. Forsyth,
472 U.S. 511 (1985) ........................................... 4, 9
In re National Securities Agency
Telecommunications Records Litigation,
444 F. Supp. 2d 1332 (J.P.M.L. 2006)................. 10
iv
In re National Security Agency Telecommunications
Records Litigation,
No. 3:06-md-01791-VRW (N.D. Cal. 2006) ......... 10
New York Times Co. v. OMB,
No. CV 19-3562 (ABJ), 2021 WL 1329025
(D.D.C. Mar. 29, 2021) ........................................ 24
Rahman v. Chertoff,
No. 05 C 3761, 2008 WL 4534407
(N.D. Ill. Apr. 16, 2008) ....................................... 13
Republic Steel Corp. v. United States,
538 F. Supp. 422 (Ct. Int’l Trade 1982),
vacated on other grounds, 5 C.I.T. 1 (1983) ........ 15
In re Sealed Case,
494 F.3d 139 (D.C. Cir. 2007) ................... 7, 11, 12
Sterling v. Constantin,
287 U.S. 378 (1932) ............................................... 3
Sterling v. Tenet,
416 F.3d 338 (4th Cir. 2005) ................................. 6
In re United States,
872 F.2d 472 (D.C. Cir. 1989) ......................passim
United States v. Nixon,
418 U.S. 683 (1974) ............................................... 7
United States v. Reynolds,
345 U.S. 1 (1953) ..........................................passim
United States v. United States District Court (Keith),
407 U.S. 297 (1972) ............................................. 25
United States Steel Corp. v. United States,
578 F. Supp. 409 (Ct. Int’l Trade 1983),
vacated on other grounds, 7 C.I.T. 117 (1984) .... 15
v
In re Washington Post Co. v. Soussoudis,
807 F.2d 383 (4th Cir. 1986) ................................. 4
Webster v. Doe,
486 U.S. 592 (1988) ............................................... 7
Statutes and Legislative Materials
5 U.S.C. § 552 ............................................................ 10
18 U.S.C. app. 3 ........................................................ 10
Emerging Threats: Overclassification and Pseudoclassification: Hearing Before the Subcommittee
on National Security, Emerging Threats, and
International Relations of the House Committee
on Government Reform,
109th Cong. (2005) ........................................ 18, 20
Hearing of the National Commission on Terrorist
Attacks Upon the United States (May 22, 2003),
https://bit.ly/2W4xFiX ......................................... 18
Rethinking Classification: Better Protection and
Greater Openness, Report of the Commission on
Protecting and Reducing Government Secrecy,
S. Doc. No. 105-2 (1997) ...................................... 20
Too Many Secrets: Overclassification as a Barrier to
Critical Information Sharing:
Hearing Before the Subcommittee on National
Security, Emerging Threats and International
Relations of the House Committee on Government
Reform,
108th Cong. (2005) .............................................. 20
vi
Books and Periodical Materials
Ben Bradlee, Jr., The Deceit and Conflict Behind the
Leak of the Pentagon Papers, New Yorker,
Apr. 8, 2021, https://bit.ly/3mkiJbz ...................... 4
Robert M. Chesney, State Secrets and the Limits of
National Security Litigation,
75 Geo. Wash. L. Rev. 1249 (2007) ................. 9, 10
Laura K. Donohue, The Shadow of State Secrets,
159 U. Pa. L. Rev. 77 (2010) .......................... 12, 19
The Federalist No. 47 (James Madison)
(Clinton Rossiter ed., 2003) ................................... 3
Amanda Frost, The State Secrets Privilege and
Separation of Powers,
75 Fordham L. Rev. 1931 (2007) ........................... 9
Erwin N. Griswold, Op-Ed., Secrets Not Worth
Keeping, Wash. Post, Feb. 15, 1989,
https://wapo.st/3DaTWg2 .................................... 17
Carrie Newton Lyons, The State Secrets Privilege:
Expanding Its Scope Through Government
Misuse, 11 Lewis & Clark L. Rev. 99 (2007) .... 6, 8
Kenneth Mayer, With the Stroke of a Pen:
Executive Orders and Presidential
Power (2021) ........................................................ 18
Donald H. Rumsfeld, Op-Ed., War of the Words,
Wall St. J., July 18, 2005,
https://on.wsj.com/3iZY8Y0 ................................. 18
Hon. Patricia M. Wald, Two Unsolved
Constitutional Problems,
49 U. Pitt. L. Rev. 753 (1988) ................................ 9
vii
William G. Weaver & Robert M. Pallitto,
State Secrets and Executive Power,
120 Pol. Sci. Q. 85 (2005) .............................passim
Jack B. Weinstein, The Role of Judges in a
Government of, by, and for the People: Notes
for the Fifty-Eighth Cardozo Lecture,
30 Cardozo L. Rev. 1 (2008) ................................ 11
Miscellaneous
Complaint, Project on Government Oversight v.
Ashcroft, No. 1:04CV01032 (JDB)
(D.D.C. June 23, 2004), ECF No. 1 ..................... 19
Neal Katyal, Confession of Error: The Solicitor
General’s Mistakes During the JapaneseAmerican Internment Cases,
Department of Justice Blog (May 20, 2011),
https://bit.ly/3AXBTrN .......................................... 5
National Archives and Records Administration,
Information Security Oversight Office 2010
Report to the President (2011),
https://bit.ly/37SdE1y .......................................... 20
National Archives and Records Administration,
Information Security Oversight Office 2017
Report to the President (2018),
https://bit.ly/3g9Xe9p .......................................... 20
Order, Citizens for Responsibility & Ethics in
Washington v. DOJ, No. CV 19-1552 (ABJ)
(D.D.C. June 14, 2021), ECF No. 35 ................... 22
Stipulation, Project on Government Oversight v.
Ashcroft, No. 1:04CV01032 (JDB)
(D.D.C. Mar. 9, 2005), ECF No. 19 ..................... 19
INTEREST OF AMICUS CURIAE1
Founded in 1971, Public Citizen is a nonprofit
public interest organization with members and
supporters in all 50 states. Public Citizen appears
before Congress, administrative agencies, and the
courts on a wide range of issues. Among other things,
Public Citizen seeks to improve transparency in
government by working for greater public access to
government documents and information. Public
Citizen promotes openness and democratic accountability in government by requesting and making use
of government records, and by providing technical and
legal assistance to individuals, public interest groups,
and the media who seek access to information held by
government agencies. Public Citizen submits this
brief to emphasize the judiciary’s important role and
responsibility in assessing government claims of
secrecy.
SUMMARY OF ARGUMENT
To ensure that a government assertion of the state
secrets privilege is proper, a court cannot merely
rubber-stamp that assertion. To fulfill the courts’
responsibility to serve as a check on the executive, the
executive’s assertions of a need for secrecy, when
raised in litigation, must be subject to meaningful
judicial review.
In many instances, the government’s assertions
that information must remain secret prove to be
––––––––––––––––––––––––
1 This brief was not written in whole or in part by counsel for
a party. No one other than amicus curiae or its counsel made a
monetary contribution to the preparation or submission of this
brief. Counsel for all parties have consented in writing to the
filing of this brief.
2
meritorious. In a distressing number of cases,
however, the government’s assertions of secrecy over
information concerning national security have been
baseless. For example, in the case where this Court
first recognized the state secrets privilege, United
States v. Reynolds, 345 U.S. 1 (1953), the government
claimed the privilege to withhold information that
involved no genuine state secrets. In numerous other
instances, the government has attempted to shield
information from public access by over-classifying
material or by wrongfully withholding records in
response to Freedom of Information Act (FOIA)
requests.
The courts thus play a critical role in assessing
whether the government’s assertions are meritorious.
Courts are competent and well-equipped to assess
government claims of secrecy and determine whether
information is properly withheld. The decision below
correctly recognizes that courts must meaningfully
review the government’s invocation of the state
secrets privilege and that, wherever possible, nonsensitive information must be disentangled from
sensitive information and released. In ordering
remand, the decision carefully walks the appropriate
line in directing the district court to examine whether
disentanglement is feasible in this case.
ARGUMENT
I.
The courts play an important role in
assessing government claims of secrecy.
A. The separation of powers in our constitutional
framework is integral to the protection of individual
liberties. The Framers believed that “[t]he accumulation of powers, legislative, executive, and judiciary, in
the same hands, whether of one, a few, or many, and
3
whether hereditary, self-appointed, or elective, may
justly be pronounced the very definition of tyranny.”
The Federalist No. 47, at 298 (James Madison)
(Clinton Rossiter ed., 2003).
Essential to our system of checks and balances is
the Judiciary’s power and responsibility “to say what
the law is” when presented with a case or
controversy—including one over whether other
branches have exceeded their legal authority.
Marbury v. Madison, 5 U.S. 137, 177 (1803). This
judicial power does not evaporate in matters involving
national security. See Sterling v. Constantin, 287 U.S.
378, 401 (1932) (“What are the allowable limits of
military discretion, and whether or not they have been
overstepped in a particular case, are judicial
questions.”). Although deference to the executive’s
national security judgments is appropriate in some
circumstances, deference does not mean blind
acquiescence.
At the end of the day, it is not the role of the
judiciary to serve as a help-mate to the executive
branch, and it is not its role to avoid difficult
decisions for fear of complicating life for federal
officials. Always mindful of the fact that in times
of national stress and turmoil the rule of law is
everything, our role is to defend the Constitution.
We do this by affording redress when government
officials violate the law, even when national
security is invoked as the justification.
Arar v. Ashcroft, 585 F.3d 559, 611 (2d Cir. 2009)
(Parker, J., dissenting).
In the context of secret executive conduct,
separation-of-powers principles take on heightened
concern. Meaningful judicial oversight of executive
4
claims of secrecy keeps abuses of power in check. “A
blind acceptance by the courts of the government’s
insistence on the need for secrecy ... would impermissibly compromise the independence of the judiciary
and open the door to possible abuse.” In re Washington
Post Co. v. Soussoudis, 807 F.2d 383, 392 (4th Cir.
1986). “Misplaced judicial deference to the assertion
of the privilege means more than citizens left without
legal remedies; sometimes it creates instability in
constitutional arrangements of power.” William G.
Weaver & Robert M. Pallitto, State Secrets and
Executive Power, 120 Pol. Sci. Q. 85, 105 (2005). For
example, the Pentagon Papers—which the government famously attempted to keep secret in New York
Times Co. v. United States, 403 U.S. 713 (1971)—
revealed “systematic lying to the American people by
four U.S. Presidents, from Harry Truman to Lyndon
Johnson” about the United States’ involvement in the
Vietnam War. See Ben Bradlee, Jr., The Deceit and
Conflict Behind the Leak of the Pentagon Papers, New
Yorker, Apr. 8, 2021, https://bit.ly/3mkiJbz.
Recognizing that “the label of ‘national security’
may cover a multitude of sins,” this Court has
explained that when “[n]ational security tasks … are
carried out in secret[,] … it is far more likely that
actual abuses will go uncovered than that fancied
abuses will give rise to unfounded and burdensome
litigation.” Mitchell v. Forsyth, 472 U.S. 511, 522–23
(1985); see also In re Washington Post Co., 807 F.2d at
391 (“History teaches us how easily the spectre of a
threat to ‘national security’ may be used to justify a
wide variety of repressive government actions.”). The
circumstances surrounding this Court’s decision in
Korematsu v. United States, 323 U.S. 214 (1944),
provide a devastating illustration of government
5
abuses in the name of national security. There, the
government “knowingly concealed from the courts”
“critical contradictory evidence” that undermined the
government’s claim that the forced relocation and
internment of Japanese Americans during World War
II was a military necessity, see Korematsu v. United
States, 584 F. Supp. 1406, 1417 (N.D. Cal. 1984),
leading then-Acting Solicitor General Neal Katyal to
confess over a half a century later that the Solicitor
General had erred in its defense of the case to this
Court.2
Thus, as this Court stated in its seminal case on
the state secrets privilege, “judicial control over the
evidence in a case cannot be abdicated to the caprice
of executive officers.” Reynolds, 345 U.S. at 9–10.
Likewise, in evaluating the state secrets privilege,
courts have recognized time and again the important
judicial responsibility to review the executive’s
invocations of secrecy. E.g., Al-Haramain Islamic
Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir.
2007) (“We take very seriously our obligation to
review the documents with a very careful, indeed a
skeptical, eye, and not to accept at face value the
government’s claim or justification of privilege.”); In
re United States, 872 F.2d 472, 475 (D.C. Cir. 1989)
(“[A] court must not merely unthinkingly ratify the
executive’s assertion of absolute privilege, lest it
inappropriately abandon its important judicial role.”);
Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983)
(“[T]o ensure that the state secrets privilege is
asserted no more frequently and sweepingly than
––––––––––––––––––––––––
2 Neal Katyal, Confession of Error: The Solicitor General’s
Mistakes During the Japanese-American Internment Cases, Dep’t
of Just. Blog (May 20, 2011), https://bit.ly/3AXBTrN.
6
necessary, it is essential that the courts continue
critically to examine instances of its invocation.”); see
also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 995
(N.D. Cal. 2006) (“While the court recognizes and
respects the executive’s constitutional duty to protect
the nation from threats, the court also takes seriously
its constitutional duty to adjudicate the disputes that
come before it …. To defer to a blanket assertion of
secrecy here would be to abdicate that duty,
particularly because the very subject matter of this
litigation has been so publicly aired.”).
B. Meaningful judicial review of government
assertions of secrecy is crucial because the
consequences of these assertions can be grave:
Individuals may be denied judicial redress for
violations of their rights if key evidence is withheld or
a claim dismissed on the basis of the state secrets
privilege. For example, the government’s successful
invocation of the state secrets privilege resulted in the
dismissal of a Title VII case where an African
American covert CIA operations officer alleged race
discrimination, Sterling v. Tenet, 416 F.3d 338 (4th
Cir. 2005), and in the dismissal of a case where a
whistleblower alleged retaliatory termination of her
employment, among other claims, for reporting
security breaches and misconduct in an FBI
translation unit, Edmonds v. DOJ, 323 F. Supp. 2d 65
(D.D.C. 2004), aff’d, 161 F. App’x 6 (D.C. Cir. 2005).
Dismissal of claims alleging violations of
individual rights, based only on the say-so of the
government defendant, “interferes with private
constitutional and statutory rights which the
government should be protecting.” Carrie Newton
Lyons, The State Secrets Privilege: Expanding Its
Scope Through Government Misuse, 11 Lewis & Clark
7
L. Rev. 99, 123 (2007); In re United States, 872 F.2d at
477 (“Dismissal of a suit, and the consequent denial of
a forum without giving the plaintiff her day in
court, … is indeed draconian.”). Thus, in reversing the
dismissal of a complaint as to one defendant, the D.C.
Circuit explained:
Where the United States has sufficient grounds
to invoke the state secrets privilege and decides
to invoke it, allowing the mere prospect of a
privileged defense to thwart a citizen’s efforts to
vindicate his or her constitutional rights would
run afoul of the Supreme Court’s caution against
precluding review of constitutional claims, see
Webster [v. Doe, 486 U.S. 592, 603–04 (1988)],
and against broadly interpreting evidentiary
privileges, for “[w]hatever their origins, ... exceptions to the demand for every man’s evidence are
not lightly created nor expansively construed, for
they are in derogation of the search for truth.”
In re Sealed Case, 494 F.3d 139, 151 (D.C. Cir. 2007)
(quoting United States v. Nixon, 418 U.S. 683, 710
(1974)).
In addition to denying redress for past wrongs, the
absence of meaningful judicial review of the
executive’s claim of the state secrets privilege may
also eliminate a means of deterring further abuses of
executive power. When the state secrets privilege is
asserted over information about illegal government
conduct, “the privilege becomes a shield behind which
the government may insulate unlawful behavior from
scrutiny and redress by citizens.” Halkin v. Helms,
598 F.2d 1, 13–14 (D.C. Cir. 1978) (Bazelon, J.,
dissenting); see also Weaver & Pallitto, 120 Pol. Sci.
Q. at 101 (“The plain fact is that if department heads
8
or the president know that assertion of the privilege
is tantamount to conclusive on the judiciary, and that
federal judges rarely order documents for inspection,
then there is great incentive on the part of the
executive branch to misuse the privilege.”). Indeed,
many of the cases in which the government has
asserted the state secrets privilege have alleged the
government’s participation in serious violations of
individual rights: for example, the warrantless
wiretapping of United States citizens in connection
with the Vietnam War, the warrantless surveillance
of millions of Americans in connection with the
government’s terrorist surveillance program, and the
“extraordinary rendition” program.3 Moreover, if key
evidence is withheld from the public based on
assertions of state secrets, the people’s ability to hold
the government accountable for its actions is
hampered, and “the public is denied the opportunity
to … perform the vital function of serving as a check
against abuses of government power.” Lyons, 11
Lewis & Clark L. Rev. at 129.
Thus, the danger of rubber-stamping executive
claims of secrecy cannot be overstated. “Secrecy may
tempt administrators to adopt activities contrary to
law and the Constitution, but when those activities
are suspected, the courts double the damage by
refusing to impose costs on the executive branch for
its breaches.” Weaver & Pallitto, 120 Pol. Sci. Q. at
103. To guard against the “[t]he danger that high
federal officials will disregard constitutional rights in
––––––––––––––––––––––––
3 See, e.g., Halkin, 598 F.2d 1 (warrantless surveillance in
connection with the Vietnam War); Hepting, 439 F. Supp. 2d 974
(terrorist surveillance program); Arar, 585 F.3d 559
(extraordinary rendition program).
9
their zeal to protect the national security,” Mitchell,
472 U.S. at 511, the courts have an important
responsibility to examine executive assertions of
secrecy with a critical eye. “In an age when it can be
argued that just about every sliver of information has
some connection with intelligence and national
security, too much judicial deference may be as great
a danger to popular government as too little.” Hon.
Patricia M. Wald, Two Unsolved Constitutional
Problems, 49 U. Pitt. L. Rev. 753, 761 (1988).
II. In many instances, the government has
made wrongful assertions to support withholding of information.
A. The government has asserted the state
secrets privilege over information that
was not a state secret.
Despite the Court’s caution that the state secrets
privilege is a privilege “not to be lightly invoked,”
Reynolds, 345 U.S. at 7, the executive’s assertions of
the state secrets privilege have increased significantly
in recent years. Following Reynolds, “the [state
secrets] privilege was asserted two times between
1961 and 1970, fourteen times between 1971 and
1980, twenty-three times between 1981 and 1990,
twenty-six times between 1991 and 2000, and twenty
times between 2001 and 2006.” Amanda Frost, The
State Secrets Privilege and Separation of Powers, 75
Fordham L. Rev. 1931, 1938–39 (2007) (citing Robert
M. Chesney, State Secrets and the Limits of National
Security Litigation, 75 Geo. Wash. L. Rev. 1249
(2007)) (footnote omitted). Since 2006, the executive
10
has asserted the state secrets privilege in at least an
additional twenty-nine cases.4
In many—and, it is to be hoped, most—instances,
the government’s assertion of privilege is meritorious.
Nonetheless, later declassification of documents,
FOIA requests, or subsequent proceedings in cases
where the privilege was asserted have revealed that
the executive’s assertion of the state secrets privilege
has been unfounded in a troubling number of cases.
That the government has made wrongful assertions to
support its withholding of information in any case, let
alone several, highlights the need for judicial review.
For example, decades after the government
successfully asserted the state secrets privilege in
Reynolds, declassification revealed “that the goal of
the government in claiming the privilege in Reynolds
was to avoid liability and embarrassment,” Weaver &
Pallitto, 120 Pol. Sci. Q. at 99—not to protect any state
secrets. In Reynolds, the widows of civilians killed in
the crash of an Air Force plane, which was testing
secret electronic equipment, sought production of the
Air Force’s accident investigation report. Reynolds,
––––––––––––––––––––––––
4 The tally of twenty-nine cases is based on a Westlaw search
for decisions issued after the last one included in Professor
Chesney’s study. It includes both published and unreported
opinions, and it excludes opinions addressing the government’s
withholding under FOIA, 5 U.S.C. § 552, as well as opinions
arising out of criminal prosecutions implicating the Classified
Information Procedures Act (CIPA), 18 U.S.C. app. 3. The tally
also counts as a single assertion of the state secrets privilege the
multi-district litigation In re National Security Agency
Telecommunications Records Litigation, No. 3:06-md-01791VRW (N.D. Cal. 2006), in which approximately forty cases were
consolidated into a single action. See In re Nat’l Sec. Agency
Telecomms. Recs. Litig., 444 F. Supp. 2d 1332 (J.P.M.L. 2006).
11
345 U.S. at 3. Asserting the state secrets privilege, the
government refused to produce the report. Id. at 4.
Without reviewing the report in camera, this Court
concluded, based on the government’s representations, that “[t]here was a reasonable danger that the
accident investigation report would contain references
to the secret electronic equipment.” Id. at 10. Accordingly, the Court ruled in favor of the government and
refused to compel production of the report. Id. at 12.
Fifty-two years after the crash, the Air Force
report was declassified, revealing that the report
“contained no state secrets relating to national
security” and that “[i]nstead, the report showed that
the crash and resulting deaths were caused by
ordinary negligence.” Jack B. Weinstein, The Role of
Judges in a Government of, by, and for the People:
Notes for the Fifty-Eighth Cardozo Lecture, 30
Cardozo L. Rev. 1, 92 (2008) (footnotes omitted).
Commentators now recognize that the invocation of
the state secrets privilege in Reynolds was “based on
an executive impulse to conceal its own mistakes and
to deny relief to those who had been wronged.” Id.
Ironically, in the very case where this Court stated
that “judicial control” must not be “abdicated” to
executive “caprice,” Reynolds, 345 U.S. at 9–10, the
plaintiff-widows were denied redress because of
judicial failure to test the government’s claims.
Reynolds is not an isolated example. In Horn v.
Huddle, former Drug Enforcement Agency agent
Richard Horn brought a Bivens action alleging that a
State Department official and CIA agent had illegally
spied on him. See In re Sealed Case, 494 F.3d 139.
Granting a motion to dismiss, the district court ruled
that the reports by the CIA’s Inspector General
describing the incidents were protected by the state
12
secrets privilege because the information would
threaten to reveal the “identities of covert CIA
officers,” among other things. Id. at 142, 152; see also
Laura K. Donohue, The Shadow of State Secrets, 159
U. Pa. L. Rev. 77, 175–76 (2010). Horn appealed, and
the D.C. Circuit reversed the dismissal as to one
defendant, explaining that Horn could establish a
prima facie case without using the privileged
information. 494 F.3d at 141. When the case returned
to the district court, the government admitted in a
court filing that “the basis for the government’s
invocation of the privilege … (that is, the ‘covert
agent’ status of CIA agent Arthur Brown) had been
incorrect.” Donohue, 159 U. Pa. L. Rev. at 175–76 &
n.462. As a result, nine years after the district court
had accepted the government’s assertion of state
secrets privilege and five years after the district court
had dismissed the case, it censured the government
for its false assertion. Id. at 177 & n.471.
Likewise, in Ellsberg v. Mitchell, 709 F.2d 51 (D.C.
Cir. 1983), the government “went too far” in invoking
the state secrets privilege to withhold the names of
the Attorneys General who had authorized
warrantless electronic surveillance of individuals
involved in the Pentagon Papers criminal prosecution.
Id. at 59–60. Although the government prevailed in
the district court on that issue, at oral argument in
the court of appeals, the government “frankly
conceded” that its in camera submissions and
affidavits did not justify the withholding. Id. at 52.
Ordering disclosure of that information, the court of
appeals wrote: “We cannot see, and the government
does not even purport to explain, how any further
disruption of diplomatic relations or undesirable
13
education of hostile intelligence analysts would result
from naming the responsible officials.” Id. at 60.
In Rahman v. Chertoff, No. 05 C 3761, 2008 WL
4534407 (N.D. Ill. Apr. 16, 2008), the court rejected
the government’s claim of state secrets over information about whether the plaintiffs were listed in the
terrorist screening database administered by the FBI.
The court explained that in light of the government’s
prior disclosures of the purported state secrets information and the factual circumstances of the case, id.
at *7, the government “failed to establish
that … disclosure of that information would create a
reasonable danger of jeopardizing national security.”
Id. at *8. Although the government argued in its brief
that the disputed information “would reveal sources
and methods of information gathering,” at oral
argument, the government conceded that the alleged
state secrets information concerned only the plaintiffs’
status in the database and “offered no explanation as
to how the disclosure of [the database] status, without
more, would reveal sources of information or methods
of investigation.” Id. at *6.
In other cases, the government has claimed the
state secrets privilege over the subject matter of litigation when that subject was not, in fact, a secret. For
example, in Al-Haramain Islamic Foundation, Inc. v.
Bush, 507 F.3d 1190 (9th Cir. 2007), the government
asserted that “the very subject matter of the
litigation—the government’s alleged warrantless
surveillance program under the [terrorist surveillance
program]” was actually a state secret. Id. at 1193. The
court rejected that assertion, in light of the
government’s “extensive” public disclosures about the
terrorist surveillance program, id., and the fact that
the program had been discussed “extensively in
14
publicly-filed pleadings, televised arguments in open
court in this appeal, and in the media and the
blogosphere,” id. at 1198 (footnote omitted). As the
court put it, “the government’s many attempts to
assuage citizens’ fears that they have not been
surveilled now doom the government’s assertion that
the very subject matter of this litigation, the existence
of a warrantless surveillance program, is barred by
the state secrets privilege.” Id. at 1200.
Similarly, in a case alleging that the National
Security Agency and AT&T were collaborating in a
warrantless surveillance program, the government
asserted that the subject matter of the case was a
state secret. The court disagreed, holding that “the
very subject matter of this action is hardly a secret”
because “public disclosures by the government and
AT&T indicate that AT&T is assisting the
government to implement some kind of surveillance
program.” Hepting, 439 F. Supp. 2d at 994.
In other cases, judges have determined that the
government’s assertion of state secrets was not proper
based on in camera review of material the government
claimed contained state secrets. For example, in
American Civil Liberties Union v. Brown, 619 F.2d
1170 (7th Cir. 1980), the government asserted the
state secrets privilege over an Army Field Manual and
several Army Regulations in connection with a
discovery dispute, on the ground that those materials
“pertain to the ‘claims of allegedly illegal domestic
intelligence activities.’” Id. at 1172 (quoting the
government’s brief). After an in camera review of the
documents, the district court “found State secrets not
to exist.” Sitting en banc, the Seventh Circuit, based
on a “preliminary in camera examination of the
material,” similarly “conclude[d] that the existence of
15
state or military secrets therein is sufficiently dubious
that the formal claim of privilege may not prevail.” Id.
at 1173. The court found that the documents did “not
strictly concern past and ongoing foreign intelligence
gathering,” did not “appear to involve more than very
general intelligence techniques,” and were “unlikely
to reveal to any foreign power the fact that
surveillance of its activities has occurred, the targets
and the extent of such surveillance, or the means by
which it was accomplished.” Id. at 1174.
In a pair of cases before the Court of International
Trade, the court, after in camera review, rejected the
government’s attempt to claim the state secrets
privilege over Commerce Department records relating
to steel imports. See U.S. Steel Corp. v. United States,
578 F. Supp. 409, 410–11 (Ct. Int’l Trade 1983)
(documents submitted by the Brazilian government
and the World Bank to the Commerce Department
“do[] not consist of state secrets and do[] not achieve
the status of a state secret”), vacated on other grounds,
7 C.I.T. 117 (1984); Republic Steel Corp. v. United
States, 538 F. Supp. 422, 422–23 (Ct. Int’l Trade 1982)
(stating that examination of cables from the
Commerce Department to a U.S. embassy in Romania
regarding antidumping petitions “showed nothing in
the nature of a state secret” and “nothing suggestive
of delicate matters of foreign policy”), vacated on other
grounds, 5 C.I.T. 1 (1983).
In addition to asserting the state secrets privilege
improperly in some cases, the government has
wrongly overstated the impact of the purported secret
on the proceedings in others. For example, in Ibrahim
v. Department of Homeland Security, 62 F. Supp. 3d
909 (N.D. Cal. 2014), the plaintiff challenged the
inclusion of her name on government terrorist
16
watchlists. The government twice represented to the
court that the effect of invoking the state secrets
privilege would be to exclude the evidence at issue
from trial. Id. at 913. Then at trial, the government
went much further and, “[i]n stubborn resist[a]nce to
letting the public and press see the details of this
case, … made numerous motions to dismiss on
various grounds, including an overbroad complete
dismissal request based on state secrets.” Id. at 935.
After denying the government’s motions to dismiss,
the court conducted a bench trial and granted relief to
the plaintiff. Id. at 915, 936.
Further, in In re United States, 872 F.2d 472 (D.C.
Cir. 1989), the government attempted to invoke the
state secrets privilege to obtain dismissal of a case
brought by a deceased Communist Party member’s
wife, who alleged various torts stemming from FBI
intelligence activities. Id. at 474. After the district
court denied the government’s motion to dismiss, the
government petitioned the court of appeals for
mandamus directing dismissal. Id. After reviewing in
camera an affidavit from the assistant director of the
FBI’s Intelligence Division, the court of appeals
denied the petition, explaining that “an item-by-item
determination of privilege will amply accommodate
the Government’s concerns.” Id. at 478; see id. at 479
(“Because of the long lapse of time, the release by the
Government to plaintiff of important information
under the Freedom of Information Act, and the
difficulties of relating the relevance in substance and
time of much of the information in the [FBI] affidavit
to the case at hand, we cannot reasonably determine
merely on the basis of this in camera affidavit that
evidence of the Government’s activities of twenty to
17
thirty years ago will result in the disclosure of state
secrets today.”).
B. The
government
has
made
nonmeritorious claims to secrecy in other
contexts.
In addition to asserting the state secrets privilege
in instances where it is unwarranted, the government
has, in a troubling number of instances, misused other
tools to conceal information. Such tools include
classification and withholding under FOIA.
1. The government’s over-classification of
information is broadly acknowledged, including by
high-ranking executive officials. For example, in the
Pentagon Papers case, the government represented
that publication posed a “grave and immediate danger
to the security of the United States.” New York Times
Co., 403 U.S. at 741 (Marshall, J., concurring)
(quoting Brief for the United States 7). Yet former
Solicitor General Erwin N. Griswold, who had argued
the government’s case to this Court, later
acknowledged that he never saw “any trace of a threat
to the national security from the publication,” nor had
he ever seen it “even suggested that there was such
an actual threat.” Erwin N. Griswold, Op-Ed., Secrets
Not Worth Keeping, Wash. Post, Feb. 15, 1989,
https://wapo.st/3DaTWg2. He went on: “It quickly
becomes apparent to any person who has considerable
experience with classified material that there is
massive overclassification, and that the principal
concern of the classifiers is not with national security,
but rather with governmental embarrassment of one
sort or another.” Id.
Griswold’s commentary echoed that of thenAttorney General Herbert Brownell, who informed
18
President Eisenhower in 1953 that classification
procedures were “so broadly drawn and loosely
administered as to make it possible for government
officials to cover up their own mistakes and even their
wrongdoing under the guise of protecting national
security.” Kenneth Mayer, With the Stroke of a Pen:
Executive Orders and Presidential Power 145 (2021)
(quoting Brownell). More recently, then-Secretary of
Defense Donald Rumsfeld acknowledged, “I have long
believed that too much material is classified across
the federal government as a general rule[.]” Donald H.
Rumsfeld, Op-Ed., War of the Words, Wall St. J., July
18, 2005, https://on.wsj.com/3iZY8Y0.
Similarly, in congressional testimony in 2005, the
then-Director of the National Archives and Record
Administration’s Information Security Oversight
Office stated: “[I]t is my view that the Government
classifies too much information; primarily, I believe,
because classifieds often becomes an automatic
decision rather than an informed, deliberate
decision.” Emerging Threats: Overclassification and
Pseudo-classification: Hearing Before the Subcomm.
on Nat’l Sec., Emerging Threats, and Int’l Relations of
the H. Comm. on Gov’t Reform, 109th Cong. 45 (2005)
(statement of J. William Leonard). Then-Chair of the
House Permanent Select Committee on Intelligence
Porter Goss, who later became the CIA Director, told
the 9/11 Commission: “[W]e over-classify very badly.
There’s a lot of gratuitous classification going on, and
there are a variety of reasons for [it].” Hearing of the
Nat’l Comm’n on Terrorist Attacks Upon the United
States (9/11 Commission) (May 22, 2003),
https://bit.ly/2W4xFiX.
One example of the government’s misclassification
of material is the case of Sibel Edmonds. Following the
19
9/11 terrorist attacks, the FBI hired Ms. Edmonds as
a contract linguist to perform translation services, but
then fired her after Ms. Edmonds reported to her
supervisors security breaches and misconduct in the
FBI translation unit where she worked. See Edmonds,
323 F. Supp. 2d at 68. After Ms. Edmonds filed a
lawsuit alleging retaliatory dismissal, among other
claims, the government retroactively classified information relating to Ms. Edmonds’s case, including
previously unclassified Senate Judiciary Committee
materials and letters from Senators Patrick Leahy
and Chuck Grassley to Justice Department officials
that had been posted on the Senators’ websites. See
Donohue, 159 U. Pa. L. Rev. at 193; Complaint, Project
on Gov’t Oversight v. Ashcroft, No. 1:04CV01032
(JDB) (D.D.C. June 23, 2004), ECF No. 1. After a
lawsuit was filed against the Justice Department
challenging the retroactive classification, the government admitted that the information could be released
to the public. See Stipulation, Project on Gov’t
Oversight v. Ashcroft, No. 1:04CV01032 (JDB) (D.D.C.
Mar. 9, 2004), ECF No. 19.
Indeed, according to estimates by various
executive officials, a striking fifty to ninety percent of
material designated classified is over-classified. In
2005, former Deputy Undersecretary for Counterintelligence and Security Carol A. Haave testified that
approximately fifty percent of classification decisions
comprise over-classifications of material. Too Many
Secrets: Overclassification as a Barrier to Critical
Information Sharing: Hearing Before the Subcomm.
on Nat’l Sec., Emerging Threats and Int’l Relations of
the H. Comm. on Gov’t Reform, 108th Cong. 82 (2005).
After the 9/11 Commission reviewed government
records about Al Qaeda and Osama Bin Laden, the
20
9/11 Commission Chairman Thomas H. Kean
reportedly stated, “Three-quarters of what I read that
was classified shouldn’t have been.” Emerging
Threats, 109th Cong. 121 (statement by Thomas S.
Blanton) (citing Lawmakers Frustrated by Delays in
Declassifying Documents, Cox News Service, July 21,
2004). And former National Security Council Executive Secretary Rodney B. McDaniel estimated that
only ten percent of classification decisions were legitimate. See Rethinking Classification: Better Protection
and Greater Openness, Report of the Comm’n on
Protecting and Reducing Government Secrecy, S. Doc.
No. 105-2 (1997).
Despite the widespread acknowledgement of overclassification, statistics maintained by the National
Archives and Records Administration’s Information
Security Oversight Office show that the government’s
classification of material has increased dramatically
over the past two decades—from approximately 5.8
million classification decisions in fiscal year 1996, to
approximately 14.2 million classification decisions in
fiscal year 2005, to more than 49 million classification
decisions in fiscal year 2017.5 If fifty percent of the
classification decisions in fiscal year 2017 over––––––––––––––––––––––––
See Nat’l Archives and Records Admin., Information
Security Oversight Office 2010 Report to the President at 12
(2011), https://bit.ly/37SdE1y (combined original and derivative
classification activity, from fiscal year 1996–2010); see also Nat’l
Archives and Records Admin., Information Security Oversight
Office 2017 Report to the President at 1 (2018),
https://bit.ly/3g9Xe9p.
5
For fiscal year 2010, the Information Security Oversight
Office reported the remarkably high total of more than 76 million
classification decisions. See Information Security Oversight
Office 2010 Report to the President at 12.
21
classified material, then the government overclassified material in more than 24 million
classification decisions in a single year.
2. In numerous FOIA cases, courts have criticized
the
government’s
improper
withholding
of
information. For example, Citizens for Responsibility
& Ethics in Washington v. DOJ, __ F. Supp. 3d ___,
No. CV 19-1552 (ABJ), 2021 WL 2652852 (D.D.C. May
3, 2021), concerned a FOIA request for documents
reviewed by then-Attorney General Barr in advance of
his public announcement regarding the results of
Special Counsel Robert Mueller’s investigation into
Russian interference with the 2016 presidential
election. Upon in camera review of a memorandum
that the government had withheld from the requester
on the basis of the deliberative process privilege
incorporated into FOIA exemption 5, the district court
found that the government had misrepresented the
information at issue:
[T]he affidavits are so inconsistent with evidence
in the record, they are not worthy of credence.
The review of the unredacted document in
camera reveals that … not only was the Attorney
General being disingenuous [regarding the
Mueller Report], but DOJ has been disingenuous
to this Court with respect to the existence of a
decision-making process that should be shielded
by the deliberative process privilege. The
agency’s redactions and incomplete explanations
obfuscate the true purpose of the memorandum,
and the excised portions contradict the [agency’s
assertion of deliberation].
Id. at *14.
22
The court determined that the agency officials had
mischaracterized the disputed information in their
affidavits and that the Justice Department attorneys
handling the case had made misrepresentations to the
court. See id. at *13 (“[T]he in camera review of the
document, which DOJ strongly resisted, raises serious
questions about how the Department of Justice could
make this series of representations to a court in
support of its 2020 motion for summary judgment.”
(internal citation omitted)). In a subsequent order, the
court stated that the agency’s declarations and
pleadings were “misleading” and that “[t]he [Justice]
Department chose not to tell the Court the purpose of
the memorandum or subject it addressed at all, and
no amount of apologizing for ‘imprecision’ in the
language it did use can cure the impact of that
fundamental omission.” Order 3, Citizens for Resp. &
Ethics in Washington v. DOJ, No. CV 19-1552 (ABJ)
(D.D.C. June 14, 2021), ECF No. 35.
Other examples of government misrepresentations
in FOIA cases abound. In Islamic Shura Council of
Southern California v. FBI, 779 F. Supp. 2d 1114
(C.D. Cal. 2011), the government lied to the district
court—and attempted to argue that it was
appropriate for the government to do so in the
“interests of national security.” Id. at 1125. There, the
plaintiffs challenged the adequacy of the government’s search in response to a FOIA request for
information reflecting investigation or surveillance of
the plaintiffs by the FBI. After reviewing an in camera
submission from the government, the court
determined that the government’s representations in
its pleadings, declarations, and briefs were “blatantly
false.” Id. at 1117. “Simply put, the Government lied
to the Court.” Islamic Shura Council of S. Calif. v.
23
FBI, 278 F.R.D. 538, 545 (C.D. Cal. 2011) (granting
motion for sanctions).6
Another court similarly concluded that “the
[g]overnment acted without the candor this Court
expects from it” in a case involving the government’s
withholding of Foreign Intelligence Surveillance
Court opinions and orders regarding the bulk
collection of information (such as telephony
metadata). ACLU v. FBI, 59 F. Supp. 3d 584, 591
(S.D.N.Y. 2014). In that case, the government
contended that Foreign Intelligence Surveillance
Court rules and procedures restricted release of
records responsive to the ACLU’s FOIA request. Id. at
590. Rejecting that argument, the court noted that
“the [g]overnment appears to have been dissembling”
in light of its previous position that Foreign
Intelligence Surveillance Court records could be
released in response to a FOIA request. Id. at 590–91
(stating that the government’s argument “strains
credulity”).
Although in many FOIA cases the government’s
assertion of an exemption is proper, in many others
courts have determined that the government has
mischaracterized and wrongly withheld the
information at issue. See, e.g., Citizens for Resp. &
Ethics in Washington v. GSA, No. CV 18-2071 (CKK),
2021 WL 1177797, at *8 (D.D.C. Mar. 29, 2021)
(government’s redactions of an email on the basis of
exemption 5 were improper where the email failed to
“include any ‘recommendations’ or ‘consultations,’
––––––––––––––––––––––––
6 The order imposing sanctions was later reversed because
the motion was served too late, “after ‘judicial rejection of the
offending contention.’” Islamic Shura Council of S. Calif. v. FBI,
757 F.3d 870, 873 (9th Cir. 2014) (citation omitted).
24
much less any ‘deliberation’” and “[r]eview of the
unredacted version of this email does not align with
GSA’s description in its Vaughn Index”); New York
Times Co. v. OMB, No. CV 19-3562 (ABJ), 2021 WL
1329025, at *8 (D.D.C. Mar. 29, 2021) (government’s
withholding of records on the basis of exemption 5 was
wrong where “there were obvious differences between
the affiants’ description of the nature and subject
matter of the documents, and the documents
themselves” and the agency’s declarations “were
contradicted by other evidence in the record”); Cause
of Action Inst. v. Export-Import Bank of the U.S., No.
19-cv-1915 (JEB), 2021 WL 706612, at *14 (D.D.C.
Feb. 23, 2021) (ordering disclosure of records where
“[e]ven the briefest in camera review reveals that
[defendant’s] description is plainly overbroad and—at
least with respect to some of the withheld
documents—seemingly inaccurate, as their content
has nothing to do with” the asserted justification for
withholding under exemption 5); ACLU v. FBI, 429 F.
Supp. 2d 179, 192–93 (D.D.C. 2006) (government’s
withholding of information was improper because “the
government cannot rely on [e]xemption 1 for material
that is not classified”); Lurie v. Dep’t of Army, 970 F.
Supp. 19, 41 (D.D.C. 1997) (government’s withholding
of a memorandum under exemption 5 was wrong
because “contrary to the Army’s boilerplate, the Court
cannot find ‘any’ personal opinions in the redacted
material to justify invoking the deliberative process
privilege”).
*
*
*
*
For the government to be afforded the “utmost
deference” that it requests (see, e.g., U.S. Br. 22), it
must act with the utmost candor. It may well be that,
25
in the majority of cases, and perhaps a large majority,
the government is correct in its assertions of secrecy.
But the government has made improper claims of
withholding in too many cases to be disregarded, and
there is too much at stake for the judicial branch to
simply defer to the government’s say-so. Given the
severity of the consequences suffered by private
litigants who risk losing their day in court, the
incentives for potential abuse by the government, and
the substantial risk that the government’s claims
may, deliberately or not, be wrong, the courts offer a
critical check, ensuring that assertions of the state
secrets privilege are proper. See Reynolds, 345 U.S. at
11 (stating that the court must “satisfy[] itself that the
occasion for invoking the privilege is appropriate”).
Courts are competent and well-equipped to play
this role, exercising judgment about whether
information is sensitive and the appropriate measures
to take when it is. See United States v. United States
District Court (Keith), 407 U.S. 297 (1972) (“We
cannot accept the Government’s argument that
internal security matters are too subtle and complex
for judicial evaluation.”); Fitzgerald v. Penthouse Int’l,
Ltd., 776 F.2d 1236, 1238 n.3 (4th Cir. 1985) (“Often,
through creativity and care, this unfairness can be
minimized through the use of procedures which will
protect the privilege and yet allow the merits of the
controversy to be decided in some form.”); Ellsberg,
709 F.2d at 57 (stating that “the privilege may not be
used to shield any material not strictly necessary to
prevent injury to national security; and, whenever
possible, sensitive information must be disentangled
from nonsensitive information to allow for the release
of the latter”).
26
III. The decision below correctly recognized
that the government’s privilege claim must
be critically examined and that nonprivileged information must be disentangled and
disclosed wherever feasible.
The holding below was “a limited one.” Pet. App.
27a. The court of appeals did not order disclosure of
information; it remanded the case for the district court
to examine whether it was possible for privileged
information to be disentangled from nonprivileged
information. Emphasizing the limited nature of its
holding, the court stated that, if the district court
determined that the privileged information could not
be disentangled, the district court could again dismiss
the case. Id. 28a.
In ordering remand, the court of appeals correctly
recognized the judiciary’s “special burden to
assure … that an appropriate balance is struck
between protecting national security matters and
preserving an open court system.” Id. 27a (citation
omitted). As the court noted, the district court has a
“panoply of tools at its disposal,” id. 27a, to safeguard
the disclosure of privileged information, such that
discovery of nonprivileged information may proceed.
For example, in a different case involving similar
information—Salim v. Mitchell, No. 2:15-cv-286-JLQ
(E.D. Wash. 2016)—respondents Mitchell and Jessen
provided
nonprivileged
deposition
testimony,
“illustrating the viability of th[e] disentanglement” of
privileged information from nonprivileged information. Pet. App. 26a. “Excerpts of those depositions
were included in the record and reflect how
depositions could proceed in this case, such as with
the use of code names and pseudonyms, where
appropriate.” Id. In addition, the district court could
27
“use the Pompeo declarations as a guide while
employing tools such as in camera review, protective
orders, and restrictions on testimony, in tailoring the
scope of Mitchell’s and Jessen’s deposition and the
documents they may be required to produce.” Id. 27a.
The government’s brief breathes no mention of
Salim, the feasibility of procedural safeguards, or the
panel’s directive to consider whether privileged
information could be disentangled from nonprivileged
information. Rather, the crux of the government’s
disagreement is with the court’s determination that
courts have an “essential obligation to review state
secrets critically, with a skeptical eye,” Pet. App. 17a
n.14. See U.S. Br. 19, 25. The government contends,
as did the dissent below, that by independently
examining the government’s assertions of state
secrets, the court “failed to afford ‘any apparent
deference’” to the executive. U.S. Br. 26 (quoting Pet.
App. 93a, 97a (Bress, J., dissenting from the denial of
rehearing en banc)); Pet. App. 30a (Gould, J.,
dissenting). The government’s preferred approach,
however, would knock the teeth out of any meaningful
judicial review of the executive’s assertions of state
secrets, effectively eliminating the judiciary’s role in
providing a check on the executive branch in this area.
Under that approach, courts would be “left with
nothing to do but accept the government’s assertions
at face value.” Pet. App. 82a (Paez, J., concurring in
the denial of rehearing en banc). “Such an approach,
besides contradicting Supreme Court precedent, is
antithetical to democratic governance and will inevitably breed abuse and misconduct.” Id.
The state secrets privilege should not provide the
executive with a blank check. To ensure that “judicial
control over the evidence in a case [is not] abdicate[d]
28
to the caprice of executive officers,” Reynolds, 345 U.S.
at 9–10, the courts have an important responsibility
to examine critically the executive’s claims of state
secrets privilege and, where possible, fashion procedures that respect both meritorious assertions of
privilege and private litigants’ interest in pursuing
their claims. The decision below correctly required the
district court to undertake that task.
CONCLUSION
For the foregoing reasons, the decision below
should be affirmed.
Respectfully submitted,
WENDY LIU
Counsel of Record
ALLISON M. ZIEVE
SCOTT L. NELSON
PUBLIC CITIZEN LITIGATION
GROUP
1600 20th Street NW
Washington, DC 20009
(202) 588-1000
wliu@citizen.org
Counsel for Amicus Curiae
August 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.