Opposition Brief — Edmonds v. Department of Justice

7

ARGUMENT

The court of appeals’ unpublished judgment is cor-

rect and does not conflict with any decision of this Court

or another court of appeals. Further review is not war-

ranted.

1. Petitioner does not dispute that the Attorney

General properly invoked the state secrets privilege and

that the privilege prevents the discovery of classified

information and requires the exclusion of such informa-

tion from the case. Nor could she. “The state secrets

privilege is a common law evidentiary rule that allows

the government to withhold information from discovery

when disclosure would be inimical to national security.”

Zuckerbraun v. General Dynamics Corp, 935 F.2d 544,

546 (5th Cir. 1991); see United States v. Reynolds, 345

U.S. 1, 6-7 (1953). As this Court has explained, the priv-

ilege may be invoked by “the head of the department

which has control over the matter, after actual personal

consideration by that officer.” Id. at 8 (footnote omit-

ted). Where there is a “reasonable danger” that disclo-

sure of the information would expose state secrets that,

“in the interest of national security, should not be di-

vulged,” the privilege applies and is absolute. Id. at 10.

Even the most compelling necessity cannot overcome

the claim of privilege” if state secrets are at stake. /d.

at 11.

The Attorney General properly invoked the state

secrets privilege after personally considering the mat-

ter. Pet. App. 16a-24a. The district court carefully re-

viewed the classified declarations, and requested an ad-

ditional declaration, before satisfying itself that “the

invocation of the state secrets privilege is proper.” /d.

at 22a-23a. The court of appeals likewise questioned

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government counsel about the classified materials at

oral argument. The classified declarations, which are

part of the record in the court of appeals,' amply sup-

port the lower courts’ conclusion that the state secrets

privilege applies in this case. Petitioner does not appear

to seek further review of that fact-bound determination.

2. Instead, petitioner argues (Pet. 18-26) that the

district court should not have dismissed this case, but

instead should have permitted non-privileged discovery.

a. It is common ground that in some cases the state

secrets privilege does not require dismissal because a

case may be able to proceed based solely on non-privi-

leged evidence. In Reynolds, for example, this Court

remanded for further proceedings after upholding the

government’s invocation of the state secrets privilege

because it appeared that the plaintiffs could “adduce the

essential facts as to [the elements of their claims] with-

out resort to material touching upon military secrets.”

345 U.S. at 11.

In other cases, however, the privileged information

is so central to the disputed issues that the case cannot

proceed without it. The courts of appeals have uni-

formly recognized that dismissal is appropriate if the

exclusion of the privileged evidence would prevent the

plaintiff from establishing a prima facie case or prevent

a defendant from establishing a valid defense. See, e. g.,

Zuckerbraun, 935 F.2d at 547; In re United States, 872

F. 2d 472, 476 (D.C. Cir.), cert. dismissed, 493 U.S. 960

(1989); Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir.),

cert. denied, 525 U.S. 967 (1998). Dismissal is also ap-

propriate when the very subject of the suit is a state

The government also could furnish a copy of those declarations

directly to the Court in connection with its consideration of the petition.

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secret. See, e. g., Kasza, 133 F.3d at 1166; McDonnell

Douglas Corp. v. United States, 323 F.3d 1006, 1021

(Fed. Cir. 2003).

Petitioner conceded below that dismissal is appropri-

ate in those circumstances. See Pet. C.A. Br. 17, 22.

The district court correctly determined that dismissal is

appropriate in this case because “the plaintiff is not only

unable to prove the prima facie elements of each of her

claims without the disclosure of privileged information,

but * * * the defendants are unable to assert valid

defenses to her claims without such disclosure,” Pet.

App. 27a. The classified materials show that the district

court’s conclusion is correct and that any prior disclo-

sures in the media or elsewhere did not contradict the

Attorney General’s assertion that further disclosure

would harm national security. See id. at 23a-24a. As

the district court recognized, however, a detailed expla-

nation of those points cannot be made publicly because

doing so would “fore{e] a disclosure of the very thing the

privilege is designed to protect.” Reynolds, 345 U.S.

at 8; see Pet. App. 22a-23a. The court of appeals’ unpub-

lished order affirming the district court’s application of

settled legal principles to the facts of this case does not

warrant further review.”

* Petitioner repeatedly refers (Pet. 8-9, 24-25) to a report of the

Department of Justice Office of Inspector General (OIG). But that

report, which recognized the sensitivity of the information at issue here,

is consistent with the assertion of the privilege and dismissal of this

suit. Although the OIG released a 35-page unclassified summary of its

classified report, the full classified report is much longer and has not

been released to the public. See OIG, A Review of the FBI's Actions in

Connection with Allegations Raised By Contract Linguist Sibel

Edmonds—UwUnclassified Summary 2-3 (Jan. 2005). The unclassified

summary explains that it “does not include all of the facts in the full

report” and is sometimes “difficult to understand * * * because much

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b. Although petitioner contends (Pet. 18-20) that the

courts of appeals are divided on the proper procedures

a court should follow in determining whether to dismiss

a case, there is no such conflict, and the district court

afforded ample procedural protections to petitioner.

i. Petitioner contends primarily (Pet. 18, 19) that

“courts have disagreed about whether the state secrets

privilege ever justifies dismissal at the pleading stage”

or whether courts should instead “first allow] non-privi-

leged discovery” before dismissing. But petitioner cites

no case in which any court of appeals has ever held that

dismissal is never appropriate at the pleading stage.

Nor, conversely, has petitioner cited any case in which

a court of appeals has held that dismissal is always ap-

propriate at the pleading stage.

Instead, the courts that have dismissed cases have

done so because it would not have been possible to liti-

gate the cases without revealing privileged information,

without regard to whether the cases were then at the

pleading or a later stage of the litigation.’ In contrast,

of the information from the full report remains classified and cannot be

included.” Id. at3n.1. Because the information in the public record is

necessarily incomplete, it does not support the disclosure of extensive

classified details, the release of which would cause serious harm to

national security.

See Zuckerbraun, 935 F.2d at 547-548; Bareford v. General

Dynamics Corp., 973 F 2d 1138, 1142, 1144 (5th Cir. 1992), cert. denied,

507 U.S. 1029 (1993); Tenendaum v. Simonini, 372 F.3d 776. 777 (6th

Cir.), cert. denied, 125 S. Ct. 605 (2004); Farnsworth Cannon, Ine. v

Grimes, 635 F. 2d 268, 281 (4th Cir. 1980) (en banc); Black v. United

States, 62 F.3d 1115, 1119 (Sth Cir. 1995), cert. denied, 517 U.S. 1154

(1996); Bowles v. United States, 950 F.2d 154, 156 (4th Cir. 1991);

Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1243-1244 (4th Cir.

1985), Kasza, 133 F.3d at 1170; Molerio v. FBI, 749 F.2d 815, 822-826

(D.C. Cir. 1984); McDonnell Douglas, 323 F 3d at 1022.

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the courts that have not dismissed at the pleading stage

or some later stage have emphasized that it was possible

that the cases could be litigated to final judgment with-

out disclosing privileged information.’ All of the courts

of appeals have applied the same legal standard—

whether the case could be litigated without disclosing

privileged information—and have based their decisions

on the facts of each case. In Ellsberg v. Mitchell, 709

F.2d 51 (D.C. Cir. 1983), cert. denied, 465 U.S. 1038

(1984), for example, the D.C. Circuit affirmed the dis-

missal of claims as to which the plaintiff could not “make

out a prima facie case without the [ privileged] informa-

tion,” but reversed the dismissal of other claims as to

which the plaintiff might have been able to do so. /d. at

65, 68. The erroneousness of petitioner’s assertion of a

circuit split is further underscored by the fact that she

puts some circuits on both sides of the supposed circuit

split, when in reality the cited decisions applied the

same legal standards to different facts in a consistent

manner.”

Nor would a categorical rule precluding dismissal at

the current stage make sense. As the privileged facts of

See In re United States, 872 F 2d at 478-479; DTM Research,

LLC. v. AT&T, 245 F.3d 327, 333-334 (4th Cir. 2001); Monarch

Assurance P. LC. v. United States, 244 F d 1356, 1364-1365 (Fed. Cir.

2001); Clift v. United States, 597 F 2d 826, 830 (2d Cir. 1979); Heine v.

Ha u., 399 F.2d 785, 791 (4th Cir. 1968).

See DTM Research, 245 F.3d at 334 (Fourth Circuit decision

remanding for further proceedings while explaining the consistency of

that result with other Fourth Circuit cases, including Farnsworth Can-

non, supra, whieh petitioner places on the other side of the supposed

circuit split, see Pet. 19); Molerio, supra (D.C. Circuit decision affirm-

ing dismissa! while following and distinguishing on its facts that circuit's

decision in Elisberg, supra, which petitioner places on the other side of

the supposed circuit split, see Pet. 20).

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this case demonstrate, it is clear at the outset of some

cases that litigation cannot proceed without disclosing

privileged information. In such cases, subjecting the

parties to non-privileged discovery would be pointless,

and would serve only to subject the parties to unneces-

sary effort and expense while risking the disclosure of

sensitive information. Just as in any other context,

cases should be dismissed when further non-privileged

factual development could not alter the result. Cf. Fed.

R. Civ. P. 56(c) (summary judgment is appropriate when

there is no genuine dispute of material fact).

Although petitioner relies heavily (Pet. 14, 17-18, 23)

on Totten v. United States, 92 U.S. 105 (1876), that case

does not support her position. Totten articulated the

“longstanding rule * * * prohibiting suits against the

Government based on covert espionage agreements.”

Tenet v. Doe, 125 S. Ct. 1230, 1233 (2005). This Court

took great care in Tenet to distinguish the state secrets

privilege from Totten’s “broader holding that lawsuits

premised on alleged espionage agreements are alto-

gether forbidden.” /d. at 1236; see id. at 1237 (rejecting

the view that “the Totten bar has been reduced to an

example of the state secrets privilege”). Petitioner ap-

pears to assume (see Pet. 23) that because a Totten case

must be dismissed at the pleading ge, state secrets

cases may never be dismissed at that stage. But there

is no basis for that assumption. If anything, Totten sup-

ports dismissal here to the extent that it stands for the

proposition that a case shonld be dismissed if it cannot

be litigated without disclosing classified information.

See Totten, 92 U.S. at 107.

ii. The other conflicts alleged by petitioner are both

illusory and irrelevant. Although petitioner contends

(Pet. 21) that the circuits are divided on “whether a

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judge is obligated to examine the allegedly privileged

material,” this Court already held in Reynolds that

whether a judge must analyze the actual privileged ma-

terial depends upon the individualized circumstances of

each case. 345 U.S. at 10-11. The cases cited by peti-

tioner (Pet. 21) are not to the contrary. See E/isberg,

709 F. 2d at 59 n.37 (stating that “in camera review of

the material is * obligatory” where, unlike here, “a

litigant must lose if the claim is upheld and the govern-

ment’s assertions are dubious”) (emphasis added);

ACLU v. Brown, 619 F.2d 1170, 1173 (7th Cir. 1980) (en

banc) (stating that in camera review of documents is

“often” required, but not describing the circumstances

under which such review is in fact required).

In any event, the question whether a court must ex-

amine allegedly privileged material is not presented by

this case. The district court carefully reviewed classi-

fied declarations that described the privileged informa-

tion. In the court of appeals, petitioner never argued

that the district court should have undertaken further

review of the classified information, and instead recog-

nized that “the court apparently considered defendants’

secret evidence in detail.” Pet. C.A. Br. 26-27. Because

the issue was neither pressed nor passed upon below,

further review is unwarranted. See, e.g., Adickes v. S. H.

Kress & Co., 398 U.S. 144, 147 n.2 (1970).

iii. The final alleged circuit split relates to whether

a court should consider alternatives to dismissal. Pet.

21. There is no such circuit split because no court of

appeals has refused to consider alternatives. Although

petitioner contends that alternatives were not expressly

considered in Farnsworth Cannon and Tenenbaum,

both of those decisions expressly concluded that further

litigation would inevitably lead to the disclosure of state

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secrets, which necessarily means that effective alterna-

tives to dismissal were not available. See Farnsworth

Cannon, 635 F.2d at 281; Tenenbaum, 372 F.3d at 777.

Neither decision ruled out the use of alternatives in ap-

propriate cases.

In any event, the district court in this case agreed

with petitioner that alternatives to dismissal should be

considered, and determined that “there are no viable

alternatives” in the circumstances of this case. Pet.

App. 32a n.7. Thus, even if there were a circuit split on

the issue, it would not be implicated by this case.

c. Although petitioner contends (Pet. 22) that ur-

gent guidance is needed because “the government’s use

of the privilege is on the rise,” her statistics indicate

that the state secrets privilege has been litigated on av-

erage only twice a year during the past quarter-century,

both before and after the events of September 11, 2001.

See ibid. This Court already articulated the overarch-

ing legal principles in Reynolds, supra, and the courts

of appeals have applied the privilege in a consistent and

practical manner ever since, as explained above. Fur-

ther guidance on the state secrets privilege does not

appear to be needed, either in general or on the specific

procedural issues raised by petitioner.

3. Petitioner’s request (Pet. 26-29) for review of the

court of appeals’ decision to close the courtroom to mem-

bers of the public comes too late. The argument has

already been held, the public has already been excluded

from the courtroom, and no action by this Court could

alter those facts. Before the argument was held, peti-

tioner and members of the media sought reconsideration

of the court of appeals’ decision to close the courtroom,

but that court denied their motions and no one sought

review from this Court before the argument was held.

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Even now the intervening members of the media have

not sought further review.

There is no ongoing injury from the court of appeals’

precautionary closing of the courtroom because that

court released a transcript of the argument shortly after

it was held. Petitioner has identified no further remedy

this Court could order.

Nor does this case satisfy the “capable of repetition

yet evading review” exception to the mootness doctrine.

That exception “applies only in exceptional situations

where the following two circumstances [are] simulta-

neously present: (1) the challenged action [is] in its du-

ration too short to be fully litigated prior to cessation or

expiration, and (2) there [is] a reasonable expectation

that the same complaining party [will] be subject to the

same action again.” Spencer v. Kemna, 523 U.S. 1, 17

(1998) (internal quotations and citations omitted). Nei-

ther circumstance is satisfied here. The issue can be

fully litigated, as demonstrated by the cases cited by

petitioner in which the issue was fully litigated. See Pet.

26-28. And there is no reason to expect that petitioner

herself will be subject to the same action again.

Even if the issue were not moot, the court of appeals’

cursory, unpublished order would not warrant further

review. Petitioner does not appear to allege a conflict

between that order and any decision of another court of

appeals regarding whether the courtroom should have

been closed under the circumstances of this case. The

court of appeals’ order lacks precedential significance in

any event because it does not articulate any legal stan-

dards that could be applied to other cases. Cf. D.C. Cir.

Rule 36(c)(2).

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

DOUGLAS LETTER

H. THOMAS BYRON III

Attorneys

OCTOBER 2005