Appendix — El-Masri v. United States, 128 S. Ct. 373 (2007) (No. 06-1613)

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

In re SEALED CASE

No. 04-5313

Appeal from the United States District Court

for the District of Columbia

(No. 94cv01756)

Argued: Dec. 14, 2006

Decided: June 29, 2007

Unsealed: July 20, 2007

Before ROGERS, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Concurring and dissenting opinion filed by Circuit Judge

BROWN.

OPINION

ROGERS, Circuit Judge: In this appeal, the court

must decide whether the state secrets privilege requires the

dismissal of Richard A. Horn’s complaint alleging the

violation of his Fourth Amendment nghts. We affirm the

district court’s determinations that the United States properly

invoked the privilege and that the complaint must be

dismissed against one of the defendants. However, we hold

that Horn can establish a prima facie case without using the

privileged information. Accordingly, we reverse the dismissal

of his complaint against the remaining defendant and remand

the case to the district court to consider whether Horn’s case

can proceed.

I.

According to the complaint, in 1993, Hom was

stationed in Rangoon, Burma, as the country attaché for the

United States Drug Enforcement Agency (“DEA”). He had a

strained professional relationship with the State Department

Chargé d’Affaires, Franklin “Pancho” Huddle, Jr., arising

from the differing policy goals of their agencies, and he

believed that Huddle was seeking information to justify

Horn’s transfer to another station outside of Burma. When

Horn discovered that Huddle had sent a classified State

Department cable allegedly transcribing a telephone call that

Horn had made to a subordinate from his residence, he

concluded that Huddle was engaging in_ electronic

eavesdropping in violation of the Fourth Amendment.

In 1994, Horn filed a Bivens’ action against Huddle

and a second unnamed defendant (“Defendant IT”), allegedly

an employee of the Central Intelligence Agency (“CIA”),

whose identity is classified. The United States intervened in

2000 and asserted the state secrets privilege with respect to

portions of two internal investigations by agency inspectors

general (“IG reports”) that had been conducted in response to

Horn’s allegations. The district court sustained the claim of

privilege. The government filed a classified motion to

dismiss the complaint on November 7, 2000, and provided a

redacted copy to Horn. Horn responded with a motion to

proceed with discovery under the Classified Information

Procedures Act (“CIPA”), 18 U.S.C. app. III, on November

13, 2000, deferring any response to the government’s motion

‘Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971). Horn’s complaint also alleged violations of anti-

wiretapping statutes and conspiracy; these claims were dismissed in 1997.

A putative class action filed by Hom was dismissed in 2000. Hom does

not pursue these matters on appeal.

until the district court resolved his proposal to proceed under

CIPA and his prior motion seeking security clearance for his

attorney’s secretaries.

Nearly four years later,” on July 28, 2004, the district

court granted the government’s motion to dismiss the

complaint pursuant to Fed. R. Civ. P. 12(b)(6) and dismissed

Horn’s outstanding motions as moot. The district court ruled

that dismissal was required on three independent grounds: (1)

the plaintiff cannot make out a prima facie case absent the

protected material; (2) the state secrets privilege deprives the

defendants of information required in their defense; and (3)

the subject matter of the plaintiff's complaint is a state secret.

Horn appeals, and our review of the dismissal of his

complaint is de novo. See, e.g., Broudy v. Mather, 460 F.3d

106, 116 (D.C. Cir. 2006).

il.

The state secrets privilege “is a common law

evidentiary rule that protects information from discovery

when disclosure would be inimical to the national security.”

In re United States, 872 F.2d 472, 474 (D.C. Cir.), cert.

denied sub nom. United States v. Albertson, 493 U.S. 960

(1989). It has “its initial roots in Aaron Burr’s trial for

treason, United States v. Burr, 25 F. Cas. 30 (C.C.D. Va.

1807), and has its modern roots in United States v. Reynolds,

345 U.S. 1 (1953).” Jd. at 474-75. In Reynolds, the Supreme

Court held that because the Federal Tort Claims Act

(“FTCA”) subjects the United States to liability only insofar

as Congress has consented, and because the FTCA expressly

incorporates the Federal Rules of Civil Procedure, the United

? The district court judge to whom the case was originally assigned died

and the case was reassigned in 1999.

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States may claim a privilege against discovery of military and

state secrets, pursuant to Fed. R. Civ. P. 34, through a formal

request “lodged by the head of the department which has

control over the matter, after actual personal consideration by

that officer.” 345 U.S. at 6-8 (footnote omitted). The Court

observed that the “constitutional overtones” were

“unnecessary to pass upon, there being a narrower [statutory]

ground for decision.” /d. at 6. In Reynolds, “[ijt [wa]s...

apparent that the [] electronic devices [that were being tested

in flight when the military airplane crashed and killed the

plaintiffs’ spouses] must be kept secret if their full military

advantage is to be exploited in the national interests.” Jd. at

10. The Court remanded the case to proceed without the

privileged materials, id. at 12, having 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 withovt resort to material touching upon

military secrets,” id. at 11.

On appeal, Horn contends that the state secrets

privilege may not be invoked in a Bivens action and,

alternatively, that his case may proceed with non-privileged

materials, including a declassified redacted cable and other

circumstantial evidence suggesting that Huddle and

Defendant II violated Horn’s constitutional rights. We first

address Horn’s challenge to the application of the privilege in

a Bivens action and his alternative contention that the United

States did not properly invoke the privilege. Neither

contention is persuasive.

A.

Unlike the plaintiffs in Reynolds, Horn does not rely

upon the FTCA’s limited waiver of sovereign immunity. As

a result, he contends that the privilege is unavailable to the

United States. Horn’s complaint invokes Bivens, which

provides that “damages may be obtained for injuries

consequent upon a violation of the Fourth Amendment by

federal officials” notwithstanding the lack of an explicit

statutory cause of action, 403 U.S. at 395-97. The district

court ruled that it was “ settled, indisputable law” that the

Fourth Amendment protects American citizens abroad, see,

e.g., United States v. Behety, 32 F.3d 503, 510-11 (11th Cir.

1994); United States v. Mount, 757 F.2d 1315, 1317-18 (D.C.

Cir. 1985), and the United States does not challenge that

ruling on appeal.

The distinction pressed by Hom __ between

constitutional claims and those based on statutory grounds

means that Reynolds holding on statutory grounds does not

control. Nonetheless, it hardly follows that the privilege

evaporates in the presence of an alleged constitutional

violation. Horn identifies no legal authority to support this

conclusion. Instead, the nature of the state secrets privilege

compels the conclusion that the United States may claim the

privilege as to evidence relevant to a constitutional claim.

Even in constitutional cases, Congress “has plenary authority

over the promulgation of evidentiary rules for the federal

courts.” Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31

(1976); see also Hawkins v. United States, 358 U.S. 74, 78,

79 (1958); Tot v. United States, 319 U.S. 463, 467 (1943).

The federal rules of evidence provide that claims of privilege

are to be “governed by the principles of the common law .. .

in the light of reason and experience.” Fed. R. Evid. 501; see

United States v. Green, 670 F.2d 1148, 1155 n.10 (D.C. Cir.

1981). In Reynolds, the Supreme Court made clear that “the

privilege against revealing military secrets . . . is well

established in the law of evidence.” 345 U.S. at 6-7.

Although the rules of evidence must yield when they offend

the constitutional trial rights of litigants, see Tot, 319 U.S. at

467; Fed. R. Evid. 501, Horn identifies no trial right that is

being abridged. In Horn’s view, it is the constitutional nature

of his underlying claim that entitles him to escape the binds

of the federal rules. We can find no support for this position,

which would essentially allow any constitutional claim to

repress any rule that withholds evidence for reasons other

than relevance, see, e.g., Fed. R. Evid. 403, 407, 411, 802.

The federal rules are premised on a distinction between

substantive claims and the evidence used to prove the claims.

Cf Hanna v. Plumer, 380 U.S. 460 (1965). Although

evidentiary matters are governed by the rules, they cannot

modify litigants’ substantive rights as to either constitutional

or statutory matters. See 28 U.S.C. § 2072(b); cf Webster v.

Doe, 486 U.S. 592, 603-04 (1988). Thus, so long as the state

secrets privilege operates as a rule of evidence, see

Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546 (2d

Cir. 1991); In re United States, 872 F.2d at 474, and not as a

means to modify Horn’s substantive constitutional rights, we

hold that it may be invoked by the United States in a Bivens

action. See also El-Masri v. United States, 479 F.3d 296, 300

(4th Cir.), petition for cert. filed, 75 U.S.L.W. 3663 (U.S.

May 30, 2007) (No. 06-1613); Black v. United States, 62

F.3d 1115, 1117 (8th Cir. 1995); Halkin v. Helms, 690 F.2d

977, 987 & n.42 (D.C. Cir. 1982) (“Halkin I” ).

B.

Notwithstanding the deference due to Executive

Branch claims of privilege, the Supreme Court instructed in

Reynolds that the state secrets privilege is not to be “lightly

invoked,” 345 U.S. at 7, because, as this court has observed,

once invoked, the privilege is “ absolute” and “cannot be

compromised by any showing of need on the part of the party

seeking the information,” Northrop Corp. v. McDonnell

Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984).

Accordingly, this court has emphasized that the district court

must scrutinize the claim of privilege more carefully when

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the plaintiff has “ made a compelling showing of need for the

information in question,” Elisberg v. Mitchell, 709 F.2d 51,

59 n. 37, 61 (D.C. Cir. 1983), cert. denied, 465 U.S. 1038

(1984); see Reynolds, 345 U.S. at 11, and this court's review

of the district court's determination that the “affidavits [are]

adequate to establish the reasonable danger of injury,” is for

abuse of discretion, Halkin IJ, 690 F.2d at 991. To sustain

the assertion of privilege, the district court need not have

complete knowledge of how disclosure would cause a

specific security breach, see In re United States, 872 F.2d at

475; it is sufficient that the reports present ‘“‘a reasonable

danger of divulging too much to a ‘sophisticated intelligence

analyst,’” id (quoting Halkin v. Helms, 598 F.2d 1, 10 (D.C.

Cir. 1978) (““Halkin I’’)). As the Supreme Court observed in

Reynolds, where it is possible to determine “from all the

circumstances of the case” that such danger exists, “the

occasion for the privilege is appropriate, and the court should

not 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.” 345 U.S. at 10.

The district court reviewed the unclassified

declarations of then-Director of Central Intelligence George

J. Tenet and then-Deputy Secretary of Defense John J.

Hamre, which set forth their personal consideration of Horn’s

allegations and the national security interests involved, as

well as additional classified declarations filed ex parte and in

camera. The district court also requested the ex parte, in

camera submission of the reports subject to the claim of

privilege. On the basis of its review, the district court

concluded that national security would be compromised if the

portions of the IG reports for which the United States claimed

a privilege were disclosed. Specifically, the district court

found that releasing those portions of the IG reports would

create the risk of revealing covert operatives, organizational

structure and functions, and intelligence-gathering sources,

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methods, and capabilities.

Upon review of the IG reports and the affidavits

submitted by the United States, we find no abuse of

discretion by the district court in ruling that the United States

has made the requisite showing as to the portions of the two

IG reports over which the United States claimed privilege.

Hence, these portions of the IG reports were properly stricken

as evidence in the case.

iil.

When the state secrets privilege is successfully

invoked, “|t]he effect . . . is well established: ‘[T]he result is

simply that 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.’” Elisberg, 709 F.2d at 64 & n.56 (quoting

McCormick’s Handbook of the Law of Evidence 233 (E.

Cleary ed., 1972) and citing the advisory committee’s note to

Prop. Fed. R. Evid. 509(d), 56 F.R.D. 183, 254 (1972), which

“was rejected by Congress for reasons unrelated to the

Committee's recognition of th[is}] principle”). Government

participation in the case results in “no alteration of pertinent

substantive or procedural rules.” /d. at 64. In general,

against a motion to dismiss, “once a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint,” Bell Ail.

Corp. v. Twombly, 127 8. Ct. 1955, 1968 (2007), “construing

the complaint liberally in the plaintiff's favor with the benefit

of all reasonable inferences derived from the facts alleged.”

Stewart v. Nat'l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir.

2006). In the context of the state secrets privilege, the court

has recognized that where, as here, the plaintiff is not in

possession of the privileged material, “dismissal of the

relevant portion of the suit would be proper only if the

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plaintiff] ] w[as] manifestly unable to make out a prima facie

case without the requested information.” Ellsberg, 709 F.2d

at 65; see also In re United States, 872 F.2d at 476. We

address each of the grounds on which the district court

dismissed the complaint.

A.

The district court ruled that Horn could not make out

a prima facie case without the use of privileged information.

In many state secrets cases, a plaintiff has no prospects of

evidence to support the assertions in his complaint and this

lack of evidence requires dismissal. See, e.g., Ellsberg, 709

F.2d at 65; Halkin J, 598 F.2d at 10-11; see also El-Masri,

479 F.3d at 308-09; Kasza v. Browner, 133 F.3d 1159, 1170

(9th Cir. 1998); Bareford v. Gen. Dynamics Corp., 973 F.2d

1138, 1140-42 (Sth Cir. 1992); Zuckerbraun, 935 F.2d at 547.

Here, however, Horn is not without evidence. As the United

States acknowledged through the Director of Central

Intelligence, “[{cJertain documents appearing as joint report

attachments [to one of the IG reports] and which contain little

or no state secrets information can be segregated (in redacted

or unredacted form, respectively) at no risk to U.S. national

security.” Tenet Decl. 4 33. Thus, although Horn cannot

access the privileged portions of the IG reports, the question

remains whether he can make out a prima facie case for a

Bivens violation with the unprivileged evidence. At this stage

of the proceedings, Horn must supply sufficient allegations

that a federal agent, acting under color of his authority,

violated his Fourth Amendment rights, but he need not

disprove possible defenses. See Bivens, 403 U.S. at 389;

Elisberg, 709 F.2d at 68.

Horn’s basic claim is straightforward: Late at night on

August 12, 1993, he placed a phone call from his personal

residence to a DEA subordinate, David Sikorra. He

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expressed concern that Huddle was trying to expel him from

Burma and that DEA might respond by closing its Burma

office. Soon thereafter, Horn learned of a cable, since

declassified in part, that Huddle sent to State Department

officials in Washington, D.C. This cable, which is dated

August 13, 1993, contains an unclassified paragraph that

reads:

Finally, Horn shows increasing signs of evident

strain. Late last night, for example, he telephoned his

junior agent to say that “I am bringing the whole DEA

operation down here.” “You will be leaving with me .

. . We’ll all leave together.” In this context, he then

went on to note talks with [DEA officials] Greene and

Maher without explicitly drawing a connection.

Cable from Franklin Huddle, American Embassy, Rangoon,

Burma, to Secretary of State, Washington, D.C. J 6 (Aug. 13,

1993) (“Huddle Cable”) (ellipses in original). On the basis of

this cable, which Horn claims quotes him verbatim, Horn

concluded that someone was eavesdropping on his personal

conversation with Sikorra.

In an _ unclassified and unprivileged affidavit

submitted to the district court, Huddle insisted instead that

Horn's conversation had spread by word of mouth. Huddle

averted that he told the IG investigators that the information

in the cable was provided to him by DEA Special Agent

Bruce Stubbs. Special Agent Stubbs, for his part, denied, in

the declassified portion of the IG report, telling anything to

Huddle about Horn's conversation with Sikorra. According to

unclassified and unprivileged information, Stubbs was on

official travel during the relevant time period and told IG

investigators that he neither saw Huddle in person nor

contacted him by telephone. Stubbs insisted that he did not

learn of Horn’s conversation with Sikorra until he returned to

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Rangoon on August 26, 1993, almost two weeks after Huddle

sent the cable to the State Department. Further, Stubbs swore

in an unclassified and unprivileged affidavit that Huddle had

contacted him while the IG investigation was pending to

discuss how Stubbs had told Huddle about Horn’s statement.

Stubbs averred that he had no such recollection and that

Huddle's telephone call was improper, to which Huddle

responded that he was merely “prescreening [Stubbs] to

determine [his] recollections of Horn's allegations.” Stubbs

Aff. para. 8. This aspect of Stubbs’ affidavit is supported by

a file memorandum that he wrote on September 22, 1994, the

day after he was contacted by Huddle. When confronted

with Stubbs’ affidavit, Huddle told investigators in writing

that he “stand{s] by [his] statement.” Huddle Stmt. (Nov. 7,

1995).

Horn thus contends, in view of the unclassified and

unprivileged materials, that he has demonstrated a prima

facie case because the district court found that the redacted

cable showed eavesdropping as the source of information,

and the declassified interviews with personnel then stationed

at the Embassy in Rangoon establish that Huddle did not

learn of Horn's conversation, either verbatim or otherwise,

from Stubbs or anybody else, leaving unconstitutional

surveillance as the only remaining option. Although Horn

has no direct evidence that Huddle participated in an

unlawful surveillance, he relies on the following

circumstantial evidence:

First, in November 1992 there was a suspicious entry

into his apartment in Burma when, unsolicited, his

government-issued rectangular coffee table was swapped for

an oval replacement while he was out of town. He was

advised that his “original coffee table was needed to

complete a sofa set at another residence.” Memorandum

from Richard A. Horn on Questionable Furniture Movement

lla

para. 3 (Feb. 27, 1995). Horn characterized this conduct as

“peculiar” and notes that “{a] telephone was located in this

room within close proximity to the aforementioned coffee

table.” Jd. para. 4.

Second, Horn traces the limited spread among

Embassy personnel of his conversation with Sikorra,

emphasizing that Huddle’s source was specific enough to

allow Huddle to use quotation marks and ellipses in the

cable. In declassified statements, Sikorra explained that he

told only a secretary, Mary Weinhold, about the disturbing

telephone call; Mrs. Weinhold explained that no one could

have overheard her conversation with Sikorra and that she

does not recall having told her husband, who also worked at

the Embassy, about Horn’s conversation; Mr. Weinhold

corroborated his wife’s recollection; and Huddle’s deputy at

the Embassy stated his belief that Huddle was aware of the

conversation between Horn and Sikorra before he was.

The district court “verified that indeed, [the Huddle

cable] is a verbatim reproduction of parts of Horn’s

conversation with Sikorra, using quotation marks and

ellipses, and a paraphrasing of other parts-evidence that

Horn's conversation had been wiretapped.” Mem. Op. of

Feb. 10, 1997, at 4. Nonetheless, the district court found

Horn's allegations insufficient to establish a prima facie case.

Mem. Op. of July 28, 2004, at 10. The district court reasoned

that Defendant II’s identity is protected and that there is no

unprivileged evidence connecting him to Horn's allegations.

As to both defendants, the district court concluded,

[a]t most [Horn] has a dispute about whether or not

[Huddle] learned the information from another person

or from [unconstitutional surveillance]. But [Horn]

cannot establish a prima facie case by offering any

evidence that [surveillance] occurred. Therefore,

[Horn]’s case must be dismissed because [Horn]

cannot establish a prima facie case against either

defendant.

Id. at 10-11 (italics added).

As to Defendant II, the district court’s reasoning is

persuasive. Nothing about this person would be admissible

in evidence at a trial, so even construing the allegations in the

complaint liberally does little for Horn's claim. However, as

to Huddle, we are unpersuaded that Horn could prove no

facts that would lead a reasonable jury to conclude that

Huddle had violated his constitutional rights. Although

Horn's case is premised on circumstantial evidence, “[a]s in

any lawsuit, the plaintiff may prove his case by direct or

circumstantial evidence.” U.S. Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 714 n.3 (1983); see also Doe v. U.S.

Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003). Horn can

point to the highly suspicious use in the cable of quotation

marks and ellipses that creates an inference that the

conversation has been transcribed, the seeming impossibility

that Huddle would have learned of the conversation by lawful

means, and the inconsistencies underlying MHuddle’s

explanation about how he learned of the conversation.

Further, even if a reasonable jury found that Hom’s

conversation with Sikorra was gossip-worthy and might have

spread through the Embassy, it could still reasonably infer

that eavesdropping had occurred from the following sentence

in the cable, which appears less likely to have spread through

office chatter: “In this context, he then went on to note talks

with Greene and Maher without explicitly drawing a

connection.” Huddle Cable { 6.

Against this proffer of evidence by Horm, the United

States offers that “[Horn’s] unsupported assertions [about

eavesdropping] rely on hearsay concerning _ the

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{investigations by the] Inspectors General, and cannot be the

subject of more proof because the contents of [portions of]

the Inspector General reports are privileged.” Appellees’ Br.

at 35 n.12. This argument fails for two reasons. First, to

avoid dismissal of his complaint under Fed. R. Civ. P.

12(b)(6), Horn need not plead the facts sufficient to prove his

allegations and evidence that will ultimately be used at trial.

See Covad Commc'ns Co. v. Bell Atl. Corp., 398 F.3d 666,

671 (D.C. Cir. 2005); Warren v. District of Columbia, 353

F.3d 36, 39-40 (D.C. Cir. 2004); Fed. R. Civ. P. 8(a).

Second, although the IG reports are privileged in part, the

interviews Horn could rely upon, such as those with Embassy

personnel, would involve conversations that have been

declassified. As such, there would be no barrier to his calling

the affiants as witnesses in order to testify to these

unclassified matters, which are not subject to the state secrets

privilege. Thus, even after evidence relating to covert

operatives, organizational structure and functions, and

intelligence-gathering sources, methods, and capabilities is

stricken from the proceedings under the state secrets

privilege, Horn has alleged sufficient facts to survive a

motion to dismiss under Rule 12(b)(6).

B.

The district court also ruled that Horn's complaint

must be dismissed because without the state secrets evidence

the defendants must proceed without materials they would

need to mount possible defenses. As a general principle,

privileged evidence is unavailable to either party, and neither

party may rely upon the stricken evidence to its advantage.

The Supreme Court in Reynolds thus admonished that the

state secrets privilege is not to be “lightly invoked.” 345 U.S.

at 7. As Judge Learned Hand observed, a claim of the state

secrets “privilege will often impose a grievous hardship, for it

may deprive parties . . . of power to assert their nights or to

defend themselves. That is a consequence of any evidentiary

privilege.” United States v. Coplon, 185 F.2d 629, 638 (2d

Cir. 1950); see also Northrop Corp., 751 F.2d at 399.

Notwithstanding the general rule that neither party

may use privileged evidence, this court has allowed limited

use to avoid the inequity caused when the United States

asserts its privilege at the possible expense of a civilian

defendant. Thus, in Ellsberg, the court suggested that

qualified immunity may protect government officials against

liability in this situation. 709 F.2d at 69 & n.74. Here,

however, the district court rejected Huddle’s claim of

qualified immunity, reasoning that “Horn’s allegations could

constitute a violation of a clearly established constitutional

right” and that “a jury could reasonably find clear and

convincing evidence of defendants’ unconstitutional motive.”

Mem. Op. of Feb. 10, 1997, at 17-18.° This court has also

recognized that the excluded evidence may be used for the

limited purpose of demonstrating a “valid defense.” Jn re

United States, 872 F.2d at 476; accord Molerio v. FBI, 749

F.2d 815, 825 (D.C. Cir. 1984). In Molerio, the court stated:

As a result of th[e] necessary process, the court knows

that the reason Daniel Molerio was not hired had

> Because the defendants in this case lack qualified immunity, our

concurring and dissenting colleague suggests that the “‘serious injustice’

identified in El/sberg” remains. Concurring & Dissenting Op. at 4. To

the contrary, in E//sberg, the court concluded:

In sum, the practicability of in camera resolution of the

immunity issue eliminates the possibility that the defendants - in

this case or in future cases - will be trapped by the government's

assertion of its state secrets privilege. And that result, in turn,

alleviates any qualms we might have concerning the result we

reach today.

709 F.2d at 70 (emphasis added).

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nothing to do with [his father’s] assertion of First

Amendment rights. Although there may be enough

circumstantial evidence to permit a jury to come to

that erroneous conclusion, it would be a mockery of

justice for the court - knowing the erroneousness - to

participate in this exercise.

749 F.2d at 825. In distinguishing El/sberg, where “the

court’s consideration of the state secrets privilege did not

ipso facto disclose to the court the validity of the defense,”

the court in Molerio concluded that “further activity in this

case would involve an attempt, however well intentioned, to

convince the jury of a falsehood.” /d. (italics added).

Therefore, when the district court can determine that

the defendant will be deprived of a valid defense based on the

privileged materials, it may properly dismiss the complaint.

Other circuits have followed suit, relying upon Molerio to

adopt the “valid defense” standard. See, e.g., Tenenbaum v.

Simonini, 372 F.3d 776, 777-78 (6th Cir. 2004); Kasza, 133

F.3d at 1166 (9th Cir.); Zuckerbraun, 935 F.2d at 547 (2d.

Cir.); cf, Bareford, 973 F.2d at 1141 (Sth Cir.). To the extent

the Fourth Circuit recently referred to “hypothetical

defenses” based on privileged information in E/-Masri, 479

F.3d at 309, its reference was made in the context of

determining whether the “state secrets are so central to [the]

proceeding that it cannot be litigated without threatening their

disclosure,” id. at 308, see Part II.C, infra; as relevant, the

court reasoned that any valid defense to El-Masri’s

allegations of illegal detention and torture would require

resort to privileged materials, id. at 308. Here, Huddle has

already revealed his defense - that he learned of Horn's

conversation through Stubbs - and it is unprivileged.

Although the district court found that Horn’s

complaint must be dismissed because there are possible

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defenses that Huddle cannot pursue without the resort to

privileged materials, this is quite different from the finding in

Molerio that the privileged materials showed that the

defendant could not have committed the alleged acts. A

“valid defense,” as contemplated by this circuit's precedents,

is meritorious and not merely plausible and would require

judgment for the defendant. See Black’s Law Dictionary

1586 (8th ed. 2004) (defining “valid” as “[ljegally

sufficient” and “[mJeritorious”); see also In re United States,

872 F.2d at 481-82 (D.H. Ginsburg, J., concurring and

dissenting) (agreeing with the court that “there is simply no

reason why plaintiff cannot go forward with her claim”

because “it is not at all clear that the Government's [secret]

defense is dispositive (or even meritorious * * * under New

York law)”). “Meritorious,” in turn, means “meriting a legal

victory,” Black's Law Dictionary, supra, at 1010.‘

Under this court's precedent, a claim of state secrets

privilege results in “no consequences save those resulting

from the loss of the evidence,” including “no alteration of

pertinent substantive or procedural rules.” El/sberg, 709 F.2d

at 64.° Were the valid-defense exception expanded to

“ In other contexts, this court has consistently equated “valid” with

meritorious and dispositive. In a criminal case, the court described a

“valid defense” as one that “required acquittal.” United States v. DeFries,

129 F.3d 1293, 1309 (D.C. Cir. 1997) (per curiam). In an exercise of

pendent jurisdiction, the court observed that the statute of limitations is a

threshold question because if it is a “valid defense,” then the court need

not reach other defenses. Rendall-Speranza v. Nassim, 107 F.3d 913, 916

(D.C. Cir. 1997). Simply put, a “valid defense” in a civil case “prohibits .

.. recover[y].” Graham v. Davis, 880 F.2d 1414, 1418 (D.C.Cir. 1989).

> Our concurring and dissenting colleague notes that this portion of

Elisberg is dicta and thus not binding on this court. See Concurring &

Dissenting Op. at 3-4. This citation to Elisberg is limited to principles

that the court described as so “well established” and “settled” to have

been “taken for granted.” 709 F.2d at 64 & nn. 56 & 57 (quoting

Mccormick's Handbook of the Law of Evidence, supra, at 233)).

17a

mandate dismissal of a complaint for any plausible or

colorable defense, then virtually every case in which the

United States successfully invokes the state secrets privilege

would need to be dismissed. This would mean abandoning

the practice of deciding cases on the basis of evidence - the

unprivileged evidence and _privileged-but-dispositive

evidence - in favor of a system of conjecture. Just as “[iJt

would be manifestly unfair to permit a presumption of

{unconstitutional conduct] to run against” the defendant when

the privilege is invoked, see Halkin I, 598 F.2d at 10, it

would be manifestly unfair to a plaintiff to impose a

presumption that the defendant has a valid defense that is

obscured by the privilege. There is no support for such a

presumption among the other evidentiary privileges because

a presumption would invariably shift the burdens of proof,

something the courts may not do under the auspices of

privilege. See 28 U .S.C. § 2072(b).

Our concurring and dissenting colleague would have

the court replace this circuit's long-settled precedent, see,

e.g., Molerio, 749 F.2d at 825; Ellsberg, 709 F.2d at 64;

Halkin I, 598 F.2d at 10, with a broader use of privileged

evidence under an approach that considers the “distortion”

effects of certain omitted defenses. See Concurring &

Dissenting Op. at 6-7. Instead of understanding meritorious

to mean “meriting a legal victory,” our concurring and

dissenting colleague seems to liken a meritorious defense to

one that is merely potential or colorable. See Concurring &

Dissenting Op. at 5-8. While suggesting that justice requires

the court to withdraw from proceedings even where such

defenses become unavailable, our colleague overlooks how

this circuit’s precedent has accommodated the interests of

both plaintiffs and defendants. In suggesting that a

defendant’s interests require dismissing actions because of

18a

plausible but not demonstrably valid defenses, our colleague

ignores how this would abridge the rights of plaintiffs and

discounts how the fundamental rights of defendants are

protected by dismissing cases when privilege obscures a valid

defense that is likely to cause the trier of fact to reach an

erroneous conclusion, Jn re United States, 872 F.2d at 476, or

upon a legitimate claim of immunity, Ellsberg, 709 F.2d at

69. This accommodation is hardly “defendant-adverse.” See

Concurring & Dissenting Op. at 5. Faced with the opposite

situation, where a plaintiff has proof of a defendant's liability

that is inaccessible because of privilege, the courts are

powerless to afford a remedy. And to the extent that our

colleague is concerned that federal service will be burdened

unless the court intervenes, see id. at 6, that concern has

already prompted the court to strike an appropriate balance of

interests by segregating the unprivileged from the privileged

materials so a plaintiff may proceed and by allowing the

limited use of privileged materials by the defendant for

purposes of claiming immunity or a valid defense. See

Ellsberg, 709 F.2d at 69.

Nor is it clear that the scales tip as our colleague

suggests. The Executive Branch is well positioned to protect

the incentives for federal scrvice: it controls both the power

to invoke the state secrets privilege and the discretion to

indemnify an employee who is found liable for conduct that

is taken within the scope of employment. See 22 C.F.R. §

21.1; see also Ellsberg, 709 F.2d at 69 n.74. Any non-

pecuniary costs that may not be susceptible to

indemnification are outweighed by the potential costs of a

federal service that fails to protect its employees’

constitutional rights. It bears remembering that the loss of

evidence to the state secrets privilege is to be treated like the

loss of evidence when “a witness ha[s] died.” Ellsberg, 709

F.2d at 64; accord Am.-Arab Anti-Discrimination Comm. y.

Reno, 70 F.3d 1045, 1070 (9th Cir.1995). The death of a

19a

witness, however, is not an occasion to dismiss complaints on

the basis of speculation about what the lost evidence might

have suggested. 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, 486 U.S. at 603-04, 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,” United

States v. Nixon, 418 U.S. 683, 710 (1974).

Consequently, the district court may properly dismiss

a complaint because of the unavailability of a defense when

the district court determines from appropriately tailored in

camera review of the privileged record, Ellsberg, 709 F.2d at

64; see Reynolds, 345 U.S. at 10, that the truthful state of

affairs would deny a defendant a valid defense that would

likely cause a trier to reach an erroneous result. Because the

district court made no finding that the existence of a valid

privileged defense for Huddle precluded the continuation of

Horn’s case, its second ground cannot sustain the dismissal of

Horn’s complaint.

Cc.

The district court further ruled that “the very subject

matter of [Horn’s] action Is a state secret,” therefore requiring

dismissal of his complaint. Mem. Op. of July 28, 2004, at 11.

In Reynolds, the Supreme Court acknowledged that there are

cases “where the very subject matter of the action . . . [is] a

matter of state secret.” 345 U.S. at 11 n.26. The court

referred to Totten v. United States, 92 U.S. (2 Otto) 105

20a

(1876), where the Court affirmed the dismissal of a lawsuit

surrounding a secret contract to perform espionage. In Tenet

v. Doe, 544 U.S. 1, 8-9 (2005), the Supreme Court clarified

that Totten, which eliminates actions that “depend[] upon the

existence of [a] secret espionage relationship,” performs a

different function than Reynolds, which merely affects the

evidence available. The Court explained that Totten’s core

concern is with “preventing the existence of the plaintiff's

relationship with the Government from being revealed.” Jd.

at 10. Here, once Defendant I! is dismissed from the case,

the United States does not claim that secret agreements of

this sort are implicated.

Horn’s case presents no occasion for using the

evidentiary privilege to eliminate substantive rights from the

outset. In the past, the court has not looked favorably upon

broad assertions by the United States that certain subject

matters are off-limits for judicial review, see Jn re United

States, 872 F.2d at 477, recognizing that “[d]Jismissal of a

suit, and the consequent denial of a forum without giving the

plaintiff her day in court, . . . is indeed draconian,” id; cf

Webster, 486 U.S. at 603-04. In Reynolds itself, at the height

of the Cold War, the Supreme Court remanded the FTCA

case to proceed without the privileged materials. See 345

U.S. at 12. Hom’s prima facie case against Huddle relies,

subject to the constraints of the state secrets privilege, upon

the cable, the office chatter of Embassy personnel, and a res

ipsa loquitur inference as to Huddle's source of information

about Horn's conversation with Sikorra. Cf Barwick v.

United States, 923 F.2d 885, 886-87 (D.C. Cir. 1991). The

national security concerns expressed by the Director of

Central Intelligence in his unclassified declaration - i.e.,

revealing identities of covert officers, locations of facilities,

organization of classified employees, and_ intelligence

sources, methods and capabilities - are peripheral to what

remains of Horn’s prima facie case. The United States makes

2la

no claim that Horn has forfeited his constitutional rights by

virtue of his overseas assignment with the DEA.

To the extent our concurring and dissenting colleague

doubts that Horn’s case can be litigated without

compromising state secrets, the record does not support the

broad statement that “the few unprivileged facts remaining

are so entwined with privileged matters, and the risk of

disclosure of privileged material so unacceptably high, that

the very subject matter of this action is a state secret.”

Concurring & Dissenting Op. at 11. The declaration of the

Director of Central Intelligence rejects the notion that all of

Horn’s lines of inquiry are inextricably interwoven. Whereas

all discussion of intelligence sources, capabilities, and the

like must be protected, the Tenet Declaration acknowledges

that the remaining material-most notably the redacted cable

and the IG interviews with Huddle and Embassy personnel -

“can be segregated . . . at no risk to U.S. national security.”

Tenet Decl. 4 33. To dismiss Horn’s complaint on the broad

grounds favored by our colleague would be to adopt a “heads

I win, tails you lose” approach to state secrets: whenever the

plaintiff lacks information about his claim, the complaint

must be dismissed for failure to make out a prima facie case,

but as soon as any information is acquired, it becomes too

risky to introduce the evidence at tnal, also necessitating

dismissal. As our discussion reveals, neither the Supreme

Court nor this court has adopted such an all-or-nothing

approach.

Because the privileged material and the material

comprising Horn’s prima facie case are of a different ilk, our

concurring and dissenting colleague’s analogy to the law of

the Fourth and Fifth Circuits, see Concurring & Dissenting

Op. at 8-9, is inapposite. In Bareford, for example, the

complaint alleged that a defense contractor had defectively

manufactured and designed a military weapons system, see

973 F.2d at 1140. As the Fifth Circuit recognized, any trial

would be about the operation and defects of the classified

weapons system, which made it facially impossible not to

discuss the classified details of the military secrets. Jd. at

1144. In Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236

(4th Cir. 1985), a claim of libel required the plaintiff to

establish that he had not, contrary to a report in Penthouse

magazine, published classified materials about experiments

with dolphins that were used to design torpedoes. Fitzgerald

needed to call an expert from the Defense Department in

order to establish that the material was not classified. /d. at

1242. However, after an invocation of the state secrets

privilege, the Fourth Circuit concluded that the case could not

proceed because allowing testimony about what was not

classified would inevitably allow the inference as to what

was Classified. See id. at 1243. Here, there is no claim that

any of the unclassified Embassy gossip borders upon or is

suggestive of classified materials - otherwise, it would not

have been declassified and disclosed by the United States. By

contrast, in E/-Masri the Fourth Circuit dealt with sensitive

details of the United States’ program of extraordinary

rendition for terrorism suspects and the legality of the very

classified program covered by the claim of privilege, see 479

F.3d at 310-11. Finally, in Farnsworth Cannon v. Grimes,

635 F.2d 268, 281 (4th Cir. 1980) (en banc) (per curiam), the

Fourth Circuit upheld the dismissal of a contract case because

the claim could not be adjudicated without reference to the

organizational structure of a certain Navy component, which

was Classified.

In an apparent rush to judgment, our concurring and

dissenting colleague misstates the position of the court as

regards the consequences of state secrets evidence. See

Concurring & Dissenting Op. at 7-8. If the-plaintiff cannot

establish a prima facie case, then the case must be dismissed.

Horn, however, can establish a prima facie case without use

of privileged materials. If the defendant proffers a valid

defense that the district court verifies upon its review of state

secrets evidence, then the case must be dismissed. The

district court made no such finding and Huddle has pointed to

no such defense on appeal. If the district court determines

that the subject matter of a case is so sensitive that there is no

way it can be litigated without risking national secrets, then

the case must be dismissed. But the district court has not yet

evaluated the case as it now stands and the Director of

Central Intelligence suggests that further proceedings should

be possible.

The court does not take lightly the issues of national

security that Horn's complaint implicates. But at this

juncture, it is premature to use our shared concern about the

conduct of future proceedings to justify abandoning all

attempts to resolve Horn's remaining substantive dispute.

The district court analyzed the danger of proceeding to trial

with reference to all of the allegations in Horn's complaint

against both defendants. Upon removing Defendant II and

the privileged portions of the IG reports and thereby limiting

Horn's claims, the information that remains is, according to

the Director of Central Intelligence, segregable from the

privileged materials such that its disclosure entails “no risk”

to national security. Tenet Decl. 33. Although witnesses in

the trial proceedings, including Horn, will likely have had

access to some classified materials in the course of their

federal employment in addition to the unprivileged materials

that form the basis of Horn’s remaining claim, there is no

basis on this record for a presumption that a witness who has

access to classified materials is unable to testify without

revealing information that he knows cannot lawfully be

disclosed in a public forum. District courts are well-

positioned to resolve such concerns, as this court has

recognized in emphasizing the obligation to disentangle

sensitive information from non-sensitive information. Jn re

United States, 872 F.2d at 476 (citing Ellsberg, 700 F.2d at

57); see Reynolds, 345 U.S. at 11. As such, there is no need

to usurp this judgment from the district court as our

concurring and dissenting colleague would prefer, see

Concurring & Dissenting Op. at 11. It remains for the district

court on remand to determine what procedures would be

required to safeguard against disclosure of privileged

materials and then to determine whether Horn’s lawsuit can

proceed. Were dismissal required based on the allegations

now before this court - where Horn relies upon unclassified

materials that the United States submits are unrelated to areas

of national security sensitivity and Huddle has proffered no

privileged valid defense - then federal government employees

could unnecessarily be denied an opportunity to enforce their

constitutional rights.

Accordingly, we affirm the dismissal of the complaint

as to Defendant II but, because the grounds specified by the

district court do not warrant dismissal of the complaint as to

Huddle, we reverse and remand the case to the district court

with instructions to reinstate the complaint against him.

Nothing in this opinion forecloses a further opportunity by

the United States to establish that privileged evidence

demonstrates a valid defense for Huddle. Similarly, nothing

in this opinion forecloses a determination by the district court

that some of the protective measures in CIPA, 18 U.S.C. app.

III, which applies in criminal cases, would be appropriate, as

Horn urges, so that his case could proceed. See, e.g., In re

United States, 872 F.2d at 479-80; McGehee v. Casey, 718

F.2d 1137, 1149 (D.C. Cir. 1983); Ellsberg, 709 F.2d at 64.

We vacate the district court’s order dismissing as moot

Horn’s motion regarding processing his secretaries for

security clearance, and we have no occasion to address

whether Horn or his counsel have a “need-to-know,” see

Exec. Order No. 13,292, § 61(z), 68 Fed. Reg. 15,315, 15,332

(March 25, 2003), additional classified information.

BROWN, Circuit Judge, concurring and dissenting: |

agree with the majority that the government properly invoked

the state secrets privilege, the privilege applies in a Bivens

action, and the district court properly dismissed Horn’s

complaint as to Defendant I1.' But we disagree about the

proper legal standard for determining when application of the

privilege requires dismissal. The majority’s reversal of the

district court’s decision pushes this circuit’s state secrets

jurisprudence in a new and troubling direction - one at odds

with all other circuits that have considered the issue.

Because, in my view, the district court reached the correct

conclusion, I respectfully dissent.

I.

After the government successfully invoked the state

secrets privilege, the district court dismissed Horn’s

complaint on three independent grounds: (1) because Horn

cannot make out a prima facie case absent the privileged

material, (2) because the privilege deprives the defendants of

information required in their defense, and (3) because “the

very subject matter of plaintiff's action is a state secret.”

Mem. Op. 8. The majority approves the dismissal of

Defendant II, but otherwise rejects the district court's

conclusions on all three grounds.

As to the district court’s first ground — Horn’s ability

to establish a prima facie case against Huddle absent the

privileged material - I generally agree with the legal standard

' The majority also properly assumes without deciding the important

question of whether “the Fourth Amendment protects American citizens

abroad,” Maj. Op. 5, because the question is not squarely presented here.

While the district court in an earlier phase of this case did find the Fourth

Amendment applicable, the government voluntarily dismissed its appeal

of that ruling, and the issue was not litigated or briefed on this appeal.

applied by the majority. But I am less sanguine than the

majority that the unprivileged facts actually suffice to make a

prima facie showing. Once the privileged material is

removed, Horn is essentially left with three pieces of

circumstantial evidence - a cable, a table, and Huddle’s

apparent lie. I question whether a reasonable person would

seriously entertain the possibility, based on that evidence

alone, that Huddle learned of Horn's statement via a wiretap.

One wonders if the atmosphere of government intrigue in this

case - an atmosphere carefully cultivated by Horm and

unfortunately only exacerbated by the government’s

invocation of the state secrets privilege - is in fact doing

much of the work in the majority’s determination that Horn

has established a prima facie case on such skimpy evidence.

Would a reasonable person really think Horn had established

a prima facie case with the same circumstantial evidence if he

was an OSHA inspector in Hoboken?

A.

But while I remain skeptical that Horn has a prima

facie case once the privileged material has been removed, my

fundamental disagreement with the majority relates to the

controlling legal standard applicable to the district court’s

second and third grounds for dismissal. The majority does

not expressly disagree with the district court’s conclusion

that, as a result of the invocation of the privilege, Huddle will

be deprived of information necessary to mount an effective

defense. Instead, relying on Molerio v. FBI, 749 F.2d 815

(D.C. Cir. 1984), and dicta from Ellsberg v. Mitchell, 709

F.2d 51 (D.C. Cir. 1983), the majority concludes dismissal is

inappropriate unless the privileged material contains a

defense so “ dispositive” as to “ require judgment for the

defendant.” Maj. Op. 17 & n.4.

To be sure, the privileged defense in Molerio was

dispositive, and the court dismissed on that basis. But the

court in Molerio merely determined that a dispositive defense

is a suficient basis for dismissal, not that a privileged defense

must be dispositive for dismissal to be appropriate. See

Molerio, 749 F.2d at 825. Because Molerio was the

paradigmatic “easy case,” it is unhelpful in establishing the

proper standard for harder cases presenting less than

dispositive, but nonetheless meritorious, defenses.

This is one of those harder cases, and the majority has

responded by borrowing Molerio’s description of an extreme

(and therefore easy) case to establish the new baseline for

dismissal. In so doing, the majority relies extensively on

speculative language from Ellsberg about the effect of the

state secrets privilege on privileged defenses. See Maj. Op.

15-20. Thus, the majority purports to apply “long-settled

precedent” in precluding all but dispositive privileged

defenses. Maj. Op. 19. But as both the majority and dissent

in that case recognized, Elisberg 's sweeping comments about

privileged defenses were dicta. See Ellsberg, 709 F.2d at 64

(noting that in light of its disposition, further discussion was

not necessary to resolve the case, but that the court

“consider[ed] it prudent to address briefly some of the

problems the trial court will confront on remand”); id. at 73

(MacKinnon, J., concurring in part and dissenting in part)

(characterizing the part of the Ellsberg opinion relied on by

the majority here as “muddled dicta” presenting “novel

procedures” that “I would be very surprised if the court on

remand even attempted to apply” in light of a likely

alternative resolution of the case); see also Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821) (“[G]eneral

expressions, in every opinion, are to be taken in connection

with the case in which those expressions are used. If they go

beyond the case, they may be respected, but ought not to

control the judgment in a subsequent suit when the very point

is presented for decision.”).

Ellsberg’s abstract discussion of privileged defenses

is only controlling, therefore, to the extent it is persuasive.

As the majority in Ellsberg itself recognized, the potential for

“serious injustice” arises when defenses are compromised by

the government's invocation of the state secrets privilege:

Deprived of the ability in practice to adduce the

evidence necessary to mount a defense to the

plaintiffs’ prima facie case, the defendants could be

held liable in damages for what in fact was wholly

blameless conduct. Such a result not only would be

patently inequitable, but might have an unfortunate

long-run impact on the recruitment and behavior of

government officials.

Ellsberg, 709 F.2d at 69 (footnote omitted). The Ellsberg

majority speculated this “serious injustice” might be

ameliorated by “recent developments” in the doctrine of

qualified immunity. /d. But, as the majority here recognizes,

the doctrine of qualified immunity does nothing for Huddle.

Maj. Op. 15. We are thus left with the “serious injustice”

identified in Ellsberg, without the supposed “way out of th[e]

dilemma” envisioned by the Ellsberg majority. Elisberg, 709

F.2d at 69. Dictum lacks binding precedential value

precisely because abstract musings often fail to produce

fully-considered legal rules. When “we accept dictum uttered

in a previous opinion as if it were binding law, which governs

our subsequent adjudication . . ., we fail to discharge our

responsibility to deliberate on and decide the question which

needs to be decided.” Pierre N. Leval, Judging Under the

Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249,

1250 (2006).

Indeed, perhaps recognizing the potential for “serious

injustice” identified in El/sberg, no other circuit has adopted

the severe defense standard applied by the majority here.

Few state secrets cases have been resolved on the defense

prong. How to treat privileged defenses is an exceedingly

difficult question, and most cases that have presented defense

issues have been dismissed on other grounds. See, e.g,

Bareford v. Gen. Dynamics Corp., 973 F.2d 1138, 1143 (Sth

Cir. 1992). But the few circuits to address squarely the issue

have not applied the defendant-adverse standard favored by

the majority. See, e.g., El-Masri v. United States, 479 F.3d

296, 309-10 (4th Cir. 2007) (dismissing in the alternative on

the ground that “the defendants could not properly defend

themselves without using privileged evidence”); Tenenbaum

v. Simonini, 372 F.3d 776, 777 (6th Cir. 2004) (dismissing

because “Defendants cannot defend their conduct with

respect to [the plaintiff] without revealing the privileged

information’’).

By equating a “valid” defense with a “dispositive”

defense, and noting that “[o]ther circuits have . . . relf{ied]

upon Molerio to adopt the ‘valid defense’ standard,” Maj.

Op. 16, the majority papers over the novelty of the defense

standard it is applying. True, other circuits have referenced

the “valid defense” standard, and cited Molerio in support,

but it is not at all clear that in doing so they interpreted

“valid” as meaning “dispositive,” as opposed to “valid” as

meaning simply “meritorious.” See Black’s Law Dictionary

1586 (8th ed. 2004) (defining “valid” as both “[{ljegally

sufficient” and “[mJeritorious”). Indeed, the Sixth Circuit in

Tenenbaum - the only circuit actually to apply a “valid

defense” standard - apparently meant the latter, since in

dismissing the case, it stated only that “Defendants cannot

defend their conduct . . . without revealing the privileged

information,” and made no suggestion that any of the

defenses were dispositive. 372 F.3d at 777.”

? The majority also cites Jn re United States, 872 F.2d 472, 476 (D.C. Cir.

1989), for its discussion of the “valid defense” standard. See Maj. Op. 16,

30a

The miajority’s privileged-defense standard is

troubling both in its sharp departure from the other circuits

and in its potential effect on public officers. If a government

officer accused of malfeasance has several meritorious - but

not sure-fire - privileged defenses, those defenses are now

simply irrelevant.”

The majority also completely ignores the potential for

distortion when valid defenses are excised by invocation of

the privilege. As Judge Phillips noted over a quarter-century

ago, it is “important to keep in mind that by its very nature”

the state secrets privilege “compromises the intrinsic fairness

of the adversary litigation process which has been provided

for formal dispute resolution” - for both plaintiffs and

defendants alike. Farnsworth Cannon, Inc. v. Grimes, 635

F.2d 268, 277 n.2 (4th Cir.) (Phillips, J., specially concurring

and dissenting), maj. op. rev’d per curiam, id. at 281 (1980)

19. The court in /n re United States, however, had no occasion to apply

any privileged-defense standard - certainly not the standard advanced by

the majority. See In re United States, 872 F.2d at 482 (D.H. Ginsburg, J.,

concurring and dissenting) (“Here it is not at all clear that the

Government’s secret defense is dispositive (or even meritorious under

New York law).” (alterations in original omitted)). In any event, any

privileged-defense discussion in /n re United States is irrelevant; unlike

here, the government itself was the defendant in /n re United States, and,

“Tijn Ellsberg, this court made clear that a government party does not

forfeit a meritorious defense merely because it would need to rely on

privileged materials in order to assert it.” /d. at 481 (emphasis added).

> The majority further states that “Huddle has already revealed his defense

- that he learned of Horn’s conversation through Stubbs - and it is

unprivileged.” Maj. Op. 17. Surely the majority cannot mean to imply

that Huddle is limited to only one defense. As the majority is aware, the

district court in a classified portion of its opinion recounted specific

aspects of the privileged material Huddle would require to mount an

effective defense at trial. Mem. Op. I1 (redacted). None of that material

relates to Horn’s disputed conversation with Stubbs.

(en banc). When application of the privilege so

“compromises the intrinsic fairness” of a judicial proceeding

- whether because it has removed too much information from

the plaintiff's case or from the defendant’s defense, or, as in

this case, both - the right solution is not simply to muddle on,

but rather “to withdraw from .. . litigants their normal right

of access to the formal dispute resolution forum provided by

the sovereign.” Jd. at 279. To permit a grossly distorted case

- where the court knows the “facts” being litigated are only a

parody of the real facts - to continue in our courts is not

justice, and only invites injustice. See id at 279 n.5

(“[Dismissal is appropriate] where the judge can sense that

the actual dispute as defined by the issues so far differs from

the dispute that could be litigated while honoring the

privilege as to draw in question the fairness of attempting to

apply to the restricted dispute the legal principles appropriate

to resolution of the actual dispute.”).*

B.

By stripping meritorious defenses from Huddle and

“ The majority argues that considering the “‘distortion’ effects of . . .

omitted defenses . . . . abridge[s] the rights of plaintiffs,” Maj. Op. 19, and

“thwart[s] a citizen’s efforts to vindicate his or her constitutional rights,”

id. at 20. Of course, that argument begs the very question that divides us:

Do plaintiffs have a “right” to use the courts to press a case -against a

defendant when the available “facts” of that case no longer approximate

reality? Ironically, it is the majority’s unprecedented privileged-defense

standard that creates “‘a system of conjecture,” Maj. Op. 18, where fact-

finders are forced to invent the missing parts of the story. The majority’s

standard, not mine, “impose[s] a presumption.” /d I am advocating a

case-by-case assessment of how the privilege has affected the shape of

the case being presented to the fact-finder, not “dismissal of a complaint

for any plausible or colorable defense.” /d The majority, in contrast, is

effectively establishing a presumption that plaintiffs able to make a prima

facie showing deserve to prevail against defendants relying on

meritorious privileged defenses, unless those defenses are dispositive.

leaving gaping holes in Horn’s prima facie case, the

invocation of the privilege so distorts this case that dismissal

is necessary. “[T]he undisclosable scope of privilege lies so

completely athwart the scope of proof relevant to resolution

of the issues presented that litigation constrained by

administration of the privilege simply could not afford the

essential fairness of opportunity to both parties that is a

fundamental assumption of the adversary system.” Id. at 279.

Even assuming, however, that the majority remains

indifferent to the distortion caused by the privilege, the

district court's third ground for dismissal - that the “very

subject matter” of Horn's action is a state secret - should be

affirmed. The district court expressed concern that state

secrets are “so central to the subject matter of [Horn's case]

that any attempt to proceed will threaten disclosure of

privileged matters.” Mem. Op. 11-12 (quoting Fitzgerald v.

Penthouse Int'l, Ltd, 776 F.2d 1236, 1241-42 (4th Cir.

1985)). The majority apparently disagrees, finding “national

security concerns . . . peripheral to what remains of Horn’s

prima facie case.” Maj. Op. 22.

In applying the “very subject matter” ground, other

circuits have focused on the threat of inadvertent disclosure

of privileged material posed by further litigation. See Kasza

v. Browner, 133 F.3d 1159, 1170 (9th Cir. 1998); Black v.

United States, 62 F.3d 1115, 1118 (8th Cir.1995); Bareford,

973 F.2d at 1143; Farnsworth Cannon, 635 F.2d at 281 (en

banc) (per curiam). Specifically, courts have considered the

extent to which the non-privileged facts remaining in the case

are intertwined with or surrounded by privileged material.

See, e.g., Bareford, 973 F.2d at 1143 (noting “the practical

reality that in the course of litigation, classified and

unclassified information cannot always be separated”);

Fitzgerald, 776 F.2d at 1243 n.11 (explaining that “the merits

of this controversy are inextricably intertwined with

privileged matters”). Courts have expressed special concern

33a

where the plaintiff is in possession of some of the privileged

material. See Fitzgerald, 776 F.2d at 1242 n.8; Farnsworth

Cannon, 635 F.2d at 281 (en banc) (per curiam). Similarly,

they have recognized the risk of accidental disclosure where

plaintiffs’ cases depend on testimony from witnesses with

personal knowledge of classified secrets “relevant to the

subject matter of the litigation.” Fitzgerald, 776 F.2d at

1242; accord Bareford, 973 F.2d at 1143-44. Courts have

taken a practical approach, looking realistically at the “facts

necessary to litigate” a plaintiff's case, “not merely [those

necessary] to discuss it in general terms.” E/-Masri, 479 F.3d

at 310-11 (collecting cases). As the Fourth Circuit has

explained, “[t]he controlling inquiry is not whether the

general subject matter of an action can be described without

resort to state secrets. Rather, we must ascertain whether an

action can be /itigated without threatening the disclosure of

such state secrets.” /d. at 308.

This court has had no occasion to apply the “very

subject matter” ground. But applying its logic to Horn’s

complaint leads inexorably to the conclusion reached by the

district court. The few remaining unprivileged facts

comprising Horn’s prima facie case are islands surrounded by

a sea of privileged material. This case is no different in that

regard than Farnsworth Cannon, Fitzgerald, Bareford, or El-

Masri, except that here the islands are fewer and smaller.”

Moreover, the majority’s assertion that Hom “is not

in possession of the privileged material” is mystifying. Maj.

> The majority characterizes those cases as “inapposite,” noting the

centrality of the privileged information to each plaintiff's case. Maj. Op.

23-24. But this case is no different - here, the clearly “sensitive details,”

Maj. Op. 23, of Huddie’s ability to conduct or order a wiretap are plainly

central to Horn’s case. And the allegations in Horn’s complaint

necessarily rely on the involvement of Defendant II; thus, dismissing

Defendant I! does not alter his centrality to Horn’s case.

34a

Op. 9. Horn clearly knows some of the privileged material,

which the majority elsewhere implicitly concedes when it

affirms the district court’s dismissal as to Defendant II,

noting “there is no unprivileged evidence connecting him to

Horn’s allegations.” See Maj. Op. 13. Admittedly, because

Horn has never seen the classified portions of the two agency

investigative reports, he cannot precisely map the division

between what portion of the information he knows is covered

by the privilege, and what isn’t. But that only exacerbates the

potential for inadvertent disclosure, presenting the same

problem identified by the Fourth Circuit in Farnsworth

Cannon:

[The ex parte] affidavit [delineating the privileged

information] has not been seen by [plaintiffs]

counsel, and without some disclosure of the affidavit

to counsel, the trial lawyers would remain unaware of

the scope of exclusion of information determined to

be state secrets. Information within the posséssion of

the parties on the periphery of the suppression order

would not readily be recognized by counsel, unaware

of the specific contents of the affidavit, as being

secret or as clearly having been suppressed by the

general order of the district court. In an attempt to

make out a prima facie case during an actual trial, the

plaintiff and its lawyers would have every incentive to

probe as close to the core secrets as the trial judge

would permit. Such probing in open court would

inevitably be revealing.

Farnsworth Cannon, 635 F.2d at 281 (en banc) (per curiam).

Likewise, the majority suggests the unavailability of

the privileged IG reports is of little consequence to Horn’s

case, because “there would be no barrier to his calling the

[reports’] affiants as witnesses in order to testify to...

35a

unclassified matters.” Maj. Op. 14. The majority is

unconcerned that witnesses with relevant knowledge who

might be called to testify are also sure to possess privileged

information relevant to Horn’s case. Because the

demarcation between the privileged and _ unprivileged

information is by no means intuitive and, like Horn, the

witnesses themselves would not be privy to the exact scope

of the privilege, “the danger that witnesses might divulge

some privileged material during [direct and] cross-

examination is great.” Bareford, 973 F.2d at 1144.

All of these considerations support the district courts

third ground for dismissal. The majority comments that, at

this stage of the proceedings, “Horn need not plead the facts

sufficient to prove his allegations and evidence that will

ultimately be used at trial.” Maj. Op. 14. That is true;

however, the government’s invocation of the state secrets

privilege in this case requires us to frankly consider whether

Horn's case “can be [litigated without threatening the

disclosure of . . . state secrets.” E/-Masri, 479 F.3d at 308.

Relying on the same case- and fact-specific approach favored

by every other circuit that has considered the issue, and based

on my review of the entire record in this case, I would find

the risk of disclosure too great. Here, the few unprivileged

facts remaining are so entwined with privileged matters, and

the risk of disclosure of privileged material so unacceptably

high, that the very subject matter of this action is a state

secret.

® The majority characterizes the declaration of the Director of Central

Intelligence as “reject[ing}] the notion that all of Horn’s lines of inquiry

are inextricably interwoven.” Maj. Op. 22. But the declaration, which in

the portion cited explains only that some potentially relevant evidence

presents “no risk to U.S. national security” once segregated, says

absolutely nothing about whether attempting to /itigate a specific case

involving that evidence might present an unacceptably high risk of

disclosure. To state that specific pieces of evidence are unprivileged is

obviously not tantamount to stating that any litigation involving that

36a

This circuit’s state secrets cases have predominantly

turned on the first of the three grounds relied on by the

district court in dismissing Horn’s case.’ The majority’s

disposition requires it to address all three grounds, but in

doing so it gives short shrift to the important issues of

distortion and disclosure. In my view, both of these issues

are most effectively considered when analyzing whether the

“very subject matter” of a case is a state secret. Thus, I

would analyze the effect of invocation of the state secrets

privilege as follows: First, can the plaintiff establish a prima

facie case absent the privileged material? Second, if so, is a

dispositive (i.e., Molerio-type) defense barred by the

invocation of the privilege? Third, is the very subject matter

of the case a state secret? In evaluating this final prong, |

would consider the issues of distortion and disclosure: Has

removal of facts relevant to the plaintiff's prima facie case or

the defendant’s defense, or both, so distorted the case that the

litigation no longer even approximates reality? And does

further litigation threaten inadvertent disclosure?

While I find this framework helpful, another might

work equally well. The problem with the majority’s

approach is its elevation of the rhetoric of perfect justice over

the realities of distortion and disclosure. The question is not

whether we like or approve of the state secrets privilege. It

exists. The question is how the existence of the privilege,

properly invoked, reshapes the case. In reversing the district

evidence could never run an unacceptable risk of disclosure of state

secrets. The majority’s attempt to wrest the latter implication from the

declaration far exceeds that document's purpose and scope.

” Molerio turned on the second ground, but, as noted, Molerio was an

easy Case presenting a clearly determinative privileged defense. See 749

F.2d at 825.

court’s conclusion that the very subject matter of Horn’s case

is a state secret, the majority rejects the standard consistently

used by other federal courts and fails to offer any alternative.*

To make matters worse, the majority announces a new and

troublingly high threshold for dismissal when invocation of

the privilege compromises the defenses of government

officials.

I respectfully dissent.

® The majority comments “there is no need to usurp . . . from the district

court” the judgment of whether the very subject matter of Horn’s case is a

state secret. Maj. Op. 25. Yet that is exactly what the majority has done,

explaining that “the district court has not yet evaluated the case as it now

stands.” Maj. Op. 24 (emphasis added). But the case “as it now stands”

is no different than the case the district court dismissed except the

majority has put Huddle back in. In dismissing Hom’s entire case, the

district court certainly considered whether an action against Huddle alone

risked disclosure of state secrets, stating that “[a]t the heart of plaintiff's

claim is . . . information that is at the center of the state secrets privilege”

and that “any attempt to proceed will threaten disclosure of privileged

matters.” Mem. Op. 12 (emphases added) (citation omitted).