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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0565%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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.

3a

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

6a

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,

7a

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

8a

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

9a

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

10a

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

l3a

{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).

15a

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

l6a

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0565%3A05. Public record. Not legal advice.