The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation

Congressional research reportAug 16, 2011

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The State Secrets Privilege: Preventing the

Disclosure of Sensitive National Security

Information During Civil Litigation

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August 16, 2011

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The State Secrets Privilege

Summary

The state secrets privilege is a judicially created evidentiary privilege that allows the federal

government to resist court-ordered disclosure of information during litigation if there is a

reasonable danger that such disclosure would harm the national security of the United States.

Although the common law privilege has a long history, the Supreme Court first described the

modern analytical framework of the state secrets privilege in the 1953 case of United States v.

Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court laid out a two-step procedure to be used

when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of

privilege, lodged by the head of the department that has control over the matter, after actual

personal consideration by that officer. Second, a court must independently determine whether the

circumstances are appropriate for the claim of privilege, and yet do so without forcing a

disclosure of the very matter the privilege is designed to protect. If the privilege is appropriately

invoked, it is absolute and the disclosure of the underlying information cannot be compelled by a

court.

A valid invocation of the privilege does not necessarily require dismissal of the claim. In

Reynolds, for instance, the Supreme Court did not dismiss the plaintiffs’ claims, but rather

remanded the case to determine whether the claims could proceed absent the privileged evidence.

Yet, significant controversy has arisen with respect to the question of how a case should proceed

in light of a successful claim of privilege. Courts have varied greatly in their willingness to either

grant government motions to dismiss a claim in its entirety or allow a case to proceed “with no

consequences save those resulting from the loss of evidence.” Some courts have taken a more

restrained view of the consequences of a valid privilege, holding that the privilege protects only

specific pieces of privileged evidence. In contrast, other courts have taken a more expansive view,

arguing that the privilege, with its constitutional underpinnings, often requires deference to

executive branch assertions and ultimately, leaves a party with no other available remedy.

The state secrets privilege arises in a wide array of cases, generally where the government is a

defendant or where the government has intervened in a case between private parties to prevent the

disclosure of state secrets. Recently, the privilege has been characterized by a number of highprofile assertions—including invocation of the privilege to defend against claims arising from the

government’s “extraordinary rendition” practices, challenges to the terrorist surveillance program,

and claims against various national security agencies for unlawful employment practices. The

government has also intervened and invoked the privilege in a significant number of cases

involving claims against government contractors. Most recently, in May 2011, the Supreme Court

held that the valid invocation of the state secrets privilege could render a defense contracting

dispute nonjusticiable, leaving both the defense contractor and the Pentagon without any judicial

remedies to enforce the contract.

This report is intended to present an overview of the protections afforded by the state secrets

privilege; a discussion of some of the many unresolved issues associated with the privilege; and a

selection of high-profile examples of how the privilege has been applied in practice.

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Contents

Introduction...................................................................................................................................... 1

United States v. Reynolds: The Seminal Case.................................................................................. 2

Asserting the Privilege .............................................................................................................. 3

Evaluating the Validity of the Privilege..................................................................................... 4

The Consequences of the Privilege: Expansive or Limited? ..................................................... 5

Subject Matter Dismissal and the Totten Bar in the Context of

Extraordinary Rendition................................................................................................... 6

The Supreme Court’s Most Recent View....................................................................................... 10

Other Examples of the State Secrets Privilege in Practice............................................................. 11

Terrorist Surveillance Program................................................................................................ 11

FISA, Preemption, and the TSP ........................................................................................ 13

Government Contractors ......................................................................................................... 14

Employment Cases .................................................................................................................. 16

Targeted Killing....................................................................................................................... 17

Terrorist Screening Database................................................................................................... 18

Conclusion ..................................................................................................................................... 19

Contacts

Author Contact Information........................................................................................................... 19

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The State Secrets Privilege

Introduction

The state secrets privilege, primarily a construct of the judiciary that has been derived from

common law,1 is an evidentiary privilege that allows the government to resist court-ordered

disclosure of information2 during civil litigation if there is a reasonable danger that such

disclosure would harm the national security of the United States.3 The privilege belongs to the

government alone, and may be invoked only after personal consideration by the head of the

department with control over the information.4 The validity of the claim is then independently

evaluated by the court after an inquiry that may require in camera review5 of the information

sought to be protected.6 If the court determines that the information in question falls under the

protection of the state secrets privilege, then the information will be considered unavailable, and

the court must determine how or whether the litigation can proceed absent the protected

evidence.7

In recent years, some have suggested that the privilege has been overused by the executive branch

to prevent disclosure of its own questionable, embarrassing, or unlawful conduct—particularly

with respect to the “war on terror.”8 In response, the Obama Administration has issued a new

policy on the state secrets privilege in an attempt to “strengthen public confidence that the U.S.

government will invoke the privilege in court only when genuine and significant harm to national

defense or foreign relations is at stake and only to the extent necessary to safeguard those

interests.”9 Under the policy established by Attorney General Eric Holder, any decision by an

agency to invoke the privilege in litigation must first be reviewed by a State Secrets Review

Committee and receive the personal approval of the Attorney General.10 The new procedures

specifically state that the Department of Justice will not defend an invocation of the state secrets

privilege to conceal “violations of the law” or “administrative error”; avoid “embarrassment”; or

See FED. R. EVID. 501.

Although the courts have struggled to precisely define what constitutes a state secret, the U.S. Court of Appeals for

the Ninth Circuit has held that the mere fact that a piece of evidence is classified is “insufficient to establish that the

information is privileged.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1082 (9th Cir. 2010) (“Although

classification may be an indication of the need for secrecy, treating it as conclusive would trivialize the court’s role

…”).

For a common law discussion of the privilege, see 8 Wigmore Evidence §§ 2367-2379 (J. McNaughton rev. 1961);

for a more recent description, see EDWARD J. IMWINKELREID, THE NEW WIGMORE: A TREATISE ON EVIDENCE:

EVIDENTIARY PRIVILEGES, ch. 8 (2002). It has also been argued that the privilege is derived “from the President’s

authority over national security, and thus is imbued with ‘constitutional overtones.’” Amanda Frost, The State Secrets

Privilege And Separation Of Powers, 75 FORDHAM L. REV. 1931, 1935 (Mar. 2007). See also, El-Masri v. U.S., 479

F.3d 296 (4th Cir. 2007)(“The state secrets privilege … has a firm foundation in the Constitution, in addition to its basis

in the common law of evidence.”).

U.S. v. Reynolds, 345 U.S. 1, 7 (1953)(“The privilege belongs to the Government, and must be asserted by it …”).

“In camera review” involves a private review of the evidence by the presiding judge in his chambers.

See, Reynolds, 345 U.S. at 8.

See, Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1082 (9th Cir. 2010).

Editorial, Hiding Behind the “State Secrets Privilege,” L.A. TIMES, May 18, 2011; Editorial, Securing Lawsuits,

WASH. POST, May 11, 2009, at A16; Editorial, Unraveling Injustice, N.Y. TIMES, Feb. 5, 2009, at 30; Editorial, Revisit

the State Secrets Privilege, PITTSBURGH POST-GAZETTE, Oct. 15, 2007, at B7.

Memorandum for Heads of Executive Departments and Agencies, Policies and Procedures Governing Invocation of

the State Secrets Privilege, Eric Holder, Attorney General, Sept. 23, 2009, available at http://legaltimes.typepad.com/

files/ag-memo-re-state-secrets-dated-09-22-09.pdf.

Id.

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to “prevent or delay the release of information … which would not reasonably be expected to

cause significant harm to national security.”11

While the state secrets privilege arises in a wide array of cases, recently the privilege has been

characterized by a number of high-profile assertions—including invocation of the privilege to

defend against claims arising from the government’s “extraordinary rendition” practices,

challenges to the terrorist surveillance program, and claims against various national security

agencies for unlawful employment practices. The government has also intervened and invoked

the privilege in a significant number of cases involving claims against government contractors.

This report is intended to present an overview of the protections afforded by the state secrets

privilege; a discussion of some of the many unresolved issues associated with the privilege; and, a

selection of high-profile examples of how the privilege has been applied in practice.

United States v. Reynolds: The Seminal Case

Although previously established,12 the Supreme Court first articulated the modern analytical

framework of the state secrets privilege in the 1953 case of United States v. Reynolds.13 That case

involved multiple wrongful death claims brought by the widows of three civilians who died

aboard a military aircraft that crashed while testing secret electronic equipment. The plaintiffs had

sought discovery of the official post-incident report and survivors’ statements that were in the

possession of the U.S. Air Force. The Air Force opposed disclosure of those documents, as the

aircraft and its occupants were engaged in a “highly secret mission of the Air Force” at the time

of the crash.14 The federal district court ordered the Air Force to produce the documents so that it

could independently determine whether they contained privileged information. When the Air

Force refused to provide the documents to the court, the district court ruled in favor of the

plaintiffs on the issue of negligence; the court of appeals subsequently affirmed the district court’s

ruling.15

The Supreme Court reversed. In its opinion, the Court laid out a two-step procedure to be used

when evaluating a claim of privilege to protect state secrets. First, “there must be a formal claim

of privilege, lodged by the head of the department which has control over the matter, after actual

personal consideration by that officer.”16 Second, “the court itself must determine whether the

circumstances are appropriate for the claim of privilege, and yet do so without forcing a

disclosure of the very thing the privilege is designed to protect.”17 Ultimately, the Reynolds Court

Id. (emphasis in original).

See, Reynolds, 345 U.S. at 6 (Describing the state secrets privilege as “well established in the law of evidence.”). One

of the earliest appearances of the privilege was in Aaron Burr’s 1807 treason trial. See, Edmonds v. U.S., 323 F. Supp.

2d 65, 70-71 (D.D.C. 2004)(citing U.S. v. Burr, 25 F. Cas. 30 (C.C.D.Va 1807).

345 U.S. 1 (1953).

Id. at 5. The Air Force did offer to make the surviving crew available for examination by the plaintiffs. Id.

Reynolds v. U.S., 192 F.2d 987 (3rd Cir. 1951).

Reynolds v. U.S., 345 U.S. 1, 8 (1953).

Id. With respect to the facts at hand, the Court noted that the Secretary of the Air Force had filed a formal assertion

of the privilege, and that there was a reasonable danger “that the accident investigation report would contain references

to the secret electronic equipment which was the primary concern of the mission.” Id. at 10. Furthermore, it was

“apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the

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determined that the Air Force’s invocation of the privilege was valid and that in camera review of

the incident report was not necessary.18 Importantly, the Court did not dismiss the claims, but

rather remanded the case and directed the district court to provide the plaintiffs with the

opportunity to pursue their case without the privileged evidence.19

Asserting the Privilege

The first requirement identified by the Reynolds Court, the assertion of the privilege, is a largely

procedural hurdle to assure that the privilege is not “lightly invoked.”20 Nevertheless, this

requirement is readily met through the written assertion of the privilege by the head of the

department in control of the information in question after “personal consideration.” Furthermore,

the privilege belongs exclusively to the government and therefore cannot be validly asserted by a

private party.21 In cases in which the government is not a party, but the nature of the claim is such

that litigation could potentially lead to the disclosure of secret evidence that would threaten

national security, the government must itself intervene and assert the state secrets privilege.22 It

should be noted, however, that the government’s failure to formally assert the privilege has

previously been excused because strict adherence to the requirement would have had little or no

benefit.23 Finally, most courts have determined that the privilege may be raised at any time. For

instance, the privilege may be raised prospectively at the pleading stage of the litigation, or

during discovery in response to specific requests for information.24

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national interests.” Id. Thus, the Court upheld the government’s assertion of the state secrets privilege and barred

discovery of the requested documents by the plaintiffs.

Id. at 11.

Id. at 12. On remand to the district court, the parties “conducted limited discovery [and] settled their claims for

approximately seventy-five percent of the original judgment.” Herring v. United States, 2004 U.S. Dist. Lexis 18545

(E.D. Pa. 2004). The declassified accident report at issue in Reynolds was obtained in 2000 by the daughter of one of

the original plaintiffs in the case. After discovering that the report did not contain a description of any “secret electronic

equipment” a claim was brought seeking to set aside the settlement on the grounds that the Air Force had committed

fraud on the court in asserting the privilege. A federal district court denied the claim, holding that a review of the

declassified documents did not “suggest that the Air Force intended to deliberately misrepresent the truth or commit a

fraud on the court.” Id. at 14.

Reynolds, 345 U.S. at 7.

Id. (“The privilege belongs to the Government, and must be asserted by it; it can neither be claimed nor waived by a

private party.”).

In practice, it seems that government contractors have attempted to invoke the privilege on their own. See, Laura K.

Donohue, The Shadow of State Secrets, 159 U. Pa. L. Rev. 77, 97 (2010).

See, Clift v. U.S., 597 F.2d 826, 828-9 (2d Cir. 1979) (preventing discovery of documents in a patent infringement

suit brought by the inventor of a cryptographic device against the government where the Director of the National

Security Agency had submitted an affidavit stating that disclosing the contents of the documents would be a criminal

violation, but had not formally asserted the state secrets privilege; the court reasoned that imposition of the formal

requirement would have had little or no benefit in this circumstance).

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010)(“The privilege may be asserted at any

time, even at the pleading stage.”).

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Evaluating the Validity of the Privilege

In contrast to the requirement that the government formally assert the privilege, the requirement

that the court evaluate the validity of the government’s claim often “presents real difficulty.”25

Accordingly, the government “bears the burden of satisfying a reviewing court that the Reynolds

reasonable-danger standard is met.”26 For example, although the Supreme Court’s holding in

Reynolds recognized that it is the role of the judiciary to evaluate the validity of a claim of

privilege, the Court declined to require that courts automatically compel inspection of the

underlying information. As the Court noted, “too much judicial inquiry into the claim of privilege

would force disclosure of the thing the privilege was meant to protect, while a complete

abandonment of judicial control would lead to intolerable abuses.”27 Therefore, although the

privilege requires some deference to the executive branch, an independent evaluation of the claim

of privilege is necessary so as not to abdicate control over evidence “to the caprice of executive

officers.”28 In light of this dilemma, the Court chose to chart a middle course, employing a

“formula of compromise” to balance the competing interests of oversight by the judiciary, the

plaintiffs’ need for the evidence, and national security interests.29 Under this scheme, the privilege

should be found valid when a court is satisfied that there is a reasonable danger that disclosure

“will expose military matters which, in the interest of national security, should not be divulged.”30

The thoroughness of a court’s review of the government’s assertion of the state secrets privilege

varies. Generally, the depth of the inquiry corresponds to an evaluation of the opposing party’s

need for the information and the government’s need to prevent disclosure.31 As part of this

balancing, a court may go so far as to require the production of the evidence in question for in

camera review. Under other circumstances, however, the nature of the evidence may be such that

the court is satisfied that the evidence warrants protection based solely on the executive branch’s

assertions. No matter the depth of the inquiry, once a court is satisfied that the privilege is valid, it

should not further “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.”32

Whether a court may be satisfied without examining the underlying information will also be

influenced by the amount of deference afforded to the government’s representations regarding the

evidence in question. In Reynolds, the Court noted that the necessity of the underlying

information to the litigation will determine “how far the court should probe in satisfying itself

that the occasion for invoking the privilege is appropriate.”33 In the case of Reynolds, the Court

noted that the Air Force had offered to make the surviving crew members available for

examination by the plaintiffs.34 Because of this alternative avenue of information, the Court was

satisfied that the privilege was valid based primarily upon representations made by the

Reynolds, 345 U.S. at 8.

El-Masri v. U.S., 479 F.3d 296, 305 (4th Cir. 2007).

Reynolds, 345 U.S. at 8.

Id. at 9-10.

Id. at 9.

Id. at 10.

Id. at 11 (“Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted …”).

Id.

Id. at 11.

Id. at 5.

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government regarding the contents of the documents.35 Conversely, less deference to the

government’s representations may be warranted where a private litigant has a strong need for the

information.36

When possible, courts have attempted to “disentangle” privileged evidence from non-privileged

evidence.37 One way to protect privileged information without excluding non-privileged evidence

is to redact sensitive portions of a document rather than barring the entire piece of evidence.

However, some courts have questioned the prudence of using redaction to protect portions of

documents that qualify for protection under the privilege out of a concern that pieces of

“seemingly innocuous” information can create a “mosaic” through which protected information

may be deduced.38 The “mosaic theory” is based on the principle that federal judges are not

properly equipped to determine which pieces of information, when taken together, could result in

the disclosure “of the very thing the privilege is designed to protect.”39 Adherence to the mosaic

theory, however, necessarily results in broad deference to the assertions of intelligence agencies.

The Consequences of the Privilege: Expansive or Limited?

If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying

information cannot be compelled by the court. Although a private litigant’s need for the

information may be relevant to the amount of deference afforded to the government, “even the

most compelling necessity cannot overcome the claim of privilege if the court is ultimately

satisfied” that the privilege is appropriate.40 Still, a valid invocation of the privilege does not

necessarily require dismissal of the claim.41 In Reynolds, for instance, the Supreme Court did not

dismiss the plaintiffs’ claims, but rather remanded the case to determine whether the claims could

proceed absent the privileged evidence. Yet, significant controversy has arisen with respect to the

question of how a case should proceed in light of the successful claim of privilege. Courts have

varied greatly in their willingness to either dismiss a claim in its entirety or allow a case to

proceed “with no consequences save those resulting from the loss of evidence.”42 Some courts

have taken a more restrained view of the consequences of a valid privilege, holding that the

privilege protects only specific pieces of privileged evidence; while others have taken a more

expansive view, arguing that the privilege, with its constitutional underpinnings, often requires

deference to executive branch assertions and ultimate dismissal.43 Whether the assertion of the

Id. at 11.

See, e.g., Molerio v. FBI, 749 F.2d 815, 822 (D.C. Cir. 1984) (in camera examination of classified information was

appropriate where it was central to litigation); Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203-04 (9th

Cir. 2007)(“We reviewed the Sealed Document in camera because of [plaintiff’s] admittedly substantial need for the

document to establish its case.”).

Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).

Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (“[I]f seemingly innocuous information is part of a …

mosaic, the state secrets privilege may be invoked to bar its disclosure and the court cannot order the government to

disentangle this information from other information.”).

Reynolds, 345 U.S. at 8.

Id. at 11.

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079 (9th Cir. 2010) (“Unlike the Totten bar, a valid claim of

privilege under Reynolds does not automatically require dismissal of the case.”).

Id. at 1082.

Compare, Ellsberg v. Mitchell, 708 F.2d 51 (D.C. Cir. 1983) (reversing a lower court dismissal under the privilege)

with El-Masri v. U.S., 479 F.3d 296, 305 (4th Cir. 2007) (dismissing the claim in light of a valid assertion of the

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state secrets privilege is fatal to a particular suit, or merely excludes privileged evidence from

further litigation, is a question that is highly dependent upon the specific facts of the case.

Pursuant to existing state secrets privilege jurisprudence, the valid invocation of the privilege

generally may result in the outright dismissal of the case in three circumstances.44 The first class

of cases in which a claim is generally dismissed is those cases in which a plaintiff cannot

establish a prima facie case without the protected evidence.45 For example, in Halkin v. Helms,

the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) was confronted with a claim of

privilege regarding the National Security Agency’s alleged interception of international

communications to and from persons who had been targeted by the Central Intelligence Agency

(CIA).46 After deciding that the claim of privilege was valid, the D.C. Circuit affirmed the

protection of that information from discovery.47 Although some non-privileged evidence that the

plaintiffs were targeted by the CIA existed, the court dismissed the suit after deciding that without

the privileged information, the plaintiffs would not be able to establish a prima facie case of

unlawful electronic surveillance.

A case will also generally be dismissed where the privilege deprives a litigant of evidence

necessary to establish a valid defense.48 In Molerio v. Federal Bureau of Investigation, a job

seeker alleged that the Federal Bureau of Investigation (FBI) had disqualified him based upon his

father’s political ties to socialist organizations in violation of the applicant’s and his father’s First

Amendment rights.49 In response, the FBI asserted that it had a lawful reason to disqualify the

plaintiff, but claimed that its reason was protected by the state secrets privilege. After reviewing

the FBI’s claim in camera, the D.C. Circuit agreed that the evidence of a nondiscriminatory

reason was protected and that its exclusion would deprive the FBI of an available defense.

Therefore, the dismissal of that action was required once the privilege was determined to be

valid.50

Subject Matter Dismissal and the Totten Bar in the Context of

Extraordinary Rendition

Most courts recognize a controversial third category of cases that requires outright dismissal

pursuant to the state secrets privilege. This class of cases includes those where the court

determines that the “very subject matter of the case is a state secret,” and as a result, “litigating

the case to a judgment on the merits would present an unacceptable risk of disclosing state

secrets.”51 Dismissals under this theory have led to significant confusion and debate, much of

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privilege).

Although not a dismissal under the state secrets privilege, the unavailability of an essential, yet privileged, piece of

information may lead a court to dismiss a claim for lack of standing. See, e.g., Al-Haramain Islamic Foundation v.

Bush, 507 F.3d 1190 (9th Cir. 2007).

See, e.g., Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998).

Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).

The other evidence of CIA targeting was never claimed to be privileged by the government. Id. at 997.

See, e.g., Edmonds v. U.S., 323 F. Supp. 2d 65, 77-79 (D.D.C. July 6, 2004).

Molerio v. FBI, 749 F. 2d at 824-825.

Id. at 825.

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083 (9th Cir. 2010).

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which derives from the proper characterization of an 1876 Supreme Court case entitled Totten v.

United States.52

Totten involved a breach of contract claim brought against the government by the estate of a

former Union Civil War spy for compensation owed for secret wartime espionage services.53 The

Court dismissed the claim noting that “as a general principle [] public policy forbids the

maintenance of any suit in a court of justice, the trial of which would inevitably lead to the

disclosure of matters which the law itself regards as confidential.”54 Thus, under Totten,

controversies over secret espionage contracts may not be reviewed by federal courts.55 The

“Totten bar” was later affirmed in Tenet v. Doe, a Supreme Court case involving a contract claim

against the CIA brought by Cold War era spies.56 Prior to that decision, the exact relevance of the

Totten rule in light of the Court’s intervening decision in Reynolds was unclear. In Tenet, the

Court held that “Totten precludes judicial review in cases such as respondents’ where success

depends upon the existence of their secret espionage relationship with the government.”57 In

reaching its decision, and by limiting Totten to its facts, the Supreme Court arguably affirmed the

distinction between the Totten bar and the Reynolds privilege—holding that the Totten rule had

not been “reduced to an example of the state secrets privilege,” and that “Reynolds therefore

cannot be plausibly read to have replaced the categorical Totten bar with the balancing of the state

secrets evidentiary privilege in the distinct class of cases that depend upon clandestine spy

relationships.”58 Therefore, disputes over contracts for espionage appear to remain a special

category of cases over which the courts have no jurisdiction, and therefore must be “dismissed on

the pleadings without ever reaching the question of evidence.”59

The relationship between the Totten bar and the Reynolds privilege may be interpreted in a

number of different ways. Some courts have attempted to maintain a strict differentiation between

Totten and Reynolds—limiting the severe consequences of the Totten bar to only those cases

which involve proving the existence of a clandestine spy relationship with the federal

government.60 Other courts have arguably “conflated” the two doctrines.61 Still others distinguish

92 U.S. 105 (1876).

Id.

Id. at 107.

The Totten bar has been labeled a “rule of non-justiciability, akin to a political question.” See, e.g., Al-Haramain

Islamic Found. Inc. v. Bush, 507 F.3d 1190, 1197 (9th Cir. 2007).

544 U.S. 1 (2005).

Id. at 8.

Id. “The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide

the absolute protection we found necessary in enunciating the Totten rule.” Id. at 11.

Id. at 8. Specifically, under Totten, the government need not invoke the state secrets privilege. Id. at 11 (“[R]equiring

the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or

denying relationships with individual plaintiffs.”).

See, e.g. Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009) (reversed by Mohamed v. Jeppesen

Dataplan, Inc., 614 F.3d 1070, 1087 (9th Cir. 2010)); Terkel v. AT&T Corp., 441 F. Supp. 2d 899 (N.D. Ill. 2006);

ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006).

El-Masri v. U.S., 479 F.3d 296 (4th Cir. 2007). See, Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1087 (9th

Cir. 2010) (“[W]e have previously disapproved of El-Masri for conflating the Totten bar’s ‘very subject matter’ inquiry

with the Reynolds privilege.”); Al-Haramain Islamic Found. Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007)(“In other

words [the El-Masri] court merged the concept of ‘subject matter’ with the notion of proof of prima facie case.”). See

also, Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis

& Clark L. Rev. 99 (2007) (noting that courts have expanded the Reynolds privilege “into the realm of Totten, despite

the distinct nature of the Totten privilege …”).

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between Totten and Reynolds, while interpreting Totten to have broader application beyond spy

contracts, resulting in a “continuum of analysis” that requires dismissal under the privilege where

“the case cannot be litigated without presenting either a certainty or an unacceptable risk of

revealing state secrets.”62

Recent cases from the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) and the U.S.

Court of Appeals for the Ninth Circuit can be viewed as exemplifying the varied conclusions

federal courts have reached in ostensibly similar cases. Both cases involved civil claims against

various government officials and private transportation companies associated with the

government’s extraordinary rendition program. “Extraordinary rendition” has been described as a

program administered by the CIA “to gather intelligence by apprehending foreign nationals

suspected of involvement in terrorist activities and transferring them in secret to foreign countries

for detention and interrogation.”63 El-Masri v. United States involved a claim by Khaled El-Masri

against the CIA and a number of private transportation companies, alleging that the defendants

unlawfully detained and interrogated him in violation of the U.S. Constitution and international

law. El-Masri, a German citizen, alleged he had been detained in Macedonia; turned over to the

CIA; flown to Afghanistan, where he was held in a CIA facility; and then flown to Albania, where

he was released.64 During his ordeal, El-Masri also alleged he was “beaten, drugged, bound, and

blindfolded during transport; confined in a small, unsanitary cell; interrogated several times, and

consistently prevented from communicating with anyone outside the detention facility.”65

Mohamed v. Jeppesen Dataplan involved a claim by five plaintiffs against a subsidiary of Boeing

for violations of the Alien Tort Statute stemming from the company’s role in providing

transportation services for the extraordinary rendition program.66 The plaintiffs alleged that

Jeppesen Dataplan Inc. “provided flight planning and logistical support services to the aircraft

and crew on all of the flights transporting the five plaintiffs among their various locations of

detention and torture.”67 In both El- Masri and Jeppesen, the government asserted the state secrets

privilege and argued that the suits should be dismissed because the issues involved in the lawsuits

could not be litigated without risking disclosure of privileged information.68

In El-Masri, the Fourth Circuit, citing both Totten and Reynolds, asserted that “the Supreme Court

has recognized that some matters are so pervaded by state secrets as to be incapable of judicial

resolution once the privilege has been invoked.”69 Although the court recognized that Totten has

“come to primarily represent a somewhat narrower principal—a categorical bar on actions to

enforce secret contracts for espionage,” the court concluded more broadly that Totten rested on

the general proposition that “a cause cannot be maintained if its trial would inevitably lead to the

Mohamed v. Jeppesen Dataplan Inc., 614 F.3d 1070, 1087 (9th Cir. 2010).

Id. at 1073. See also, CRS Report RL32890, Renditions: Constraints Imposed by Laws on Torture, by (name redacte

d).

El-Masri v. U.S., 479 F.3d 296 (4th Cir. 2007).

Id. at 300.

Mohamed v. Jeppesen Dataplan Inc., 579 F.3d 943 (9th Cir. 2009).

Id. at 951.

El-Masri v. U.S., 479 F.3d at 301. In Jeppesen, the federal government was not initially a defendant, but intervened

in the case to assert the privilege and simultaneously moved to dismiss. Mohamed v. Jeppesen Dataplan, 539 F. Supp.

2d 1128, 1132-1133 (N.D. Cal. 2008).

El-Masri, 479 F.3d at 306.

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disclosure of privileged information.”70 In the court’s opinion, any attempt by El-Masri to prove

or disprove the allegations in the complaint would necessarily involve disclosing the internal

organization and procedures of the CIA, as well as secret contracts with the transportation

companies. The circuit court thus determined that because the “central facts … that form the

subject matter of El-Masri’s claim [] remain state secrets,” the court was required to dismiss the

suit upon the successful invocation of the privilege by the government.71 The Supreme Court

declined to review the El-Masri decision.72

It is also important to note that in reaching its decision, the Fourth Circuit emphasized the notion

that the state secrets privilege performs a “function of constitutional significance.”73 Prior to the

El-Masri case, the privilege had traditionally been characterized as a common law evidentiary

privilege, rather than a constitutionally based doctrine. The Fourth Circuit opinion, however,

contained express language asserting that the state secrets privilege “has a firm foundation in the

Constitution.”74

In contrast, in Mohamed v. Jeppesen Dataplan, a Ninth Circuit panel initially held that the state

secrets privilege only excluded privileged evidence from discovery or admission at trial, and did

not require the dismissal of the complaint at the pleadings stage.75 While the court recognized that

the exclusion of privileged evidence from discovery might ultimately be fatal to the litigation if it

prevented the plaintiffs from establishing a prima facie case or denied the defendant a valid

defense, the Jeppesen court held that dismissal of a suit on the pleadings based on the “very

subject matter” of the privileged information was not warranted, except in the narrow case of

contracts for espionage barred under Totten.76

In characterizing Totten and Reynolds, the Ninth Circuit noted that “two parallel strands of the

state secrets doctrine have emerged from its relatively thin history.”77 The opinion clearly

distinguished between the Reynolds privilege and the Totten bar, recognizing that dismissal under

the Reynolds privilege was only proper when the privileged evidence prevented the plaintiff from

establishing a prima facie case, or the defendant from establishing a valid defense.78 “Neither

does any Ninth Circuit or Supreme Court case law,” concluded the court, “indicate that the ‘very

subject matter’ of any other kind of law suit is a state secret, apart from the limited factual context

of Totten itself.”79 Limiting Totten to its facts, the Ninth Circuit panel refused to countenance any

expansion of “Totten’s uncompromising dismissal rule beyond secret agreements with the

government.”80

Id.

Id. at 311.

552 U.S. 947 (2007).

Id. at 303.

Id. at 304.

Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).

Id. at 954.

Id. at 952.

Id. at 958 (“Thus, within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is

itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise

be available to the defendant.”).

Id. at 954.

Id.

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Upon en banc review, however, the panel decision was overturned by a vote of 6-5.81 While

criticizing the Fourth Circuit’s decision in El-Masri as an “erroneous conflation” of the Totten

bar’s “very subject matter” inquiry with the Reynolds privilege, and expressly criticizing Totten as

an ambiguous “judge-made doctrine with extremely harsh consequences,” the court determined

that dismissal was nonetheless required under Reynolds, and not Totten, as there was “no feasible

way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state

secrets.”82

In recognizing this third category of cases requiring dismissal under Reynolds, the Ninth Circuit

noted that there exists a point in which “the Reynolds privilege converges with the Totten bar,” to

form a “continuum of analysis.”83 According to the court, included in the circumstances under

which Reynolds merges with Totten is any case in which litigation would potentially result in an

“unacceptable risk of disclosing state secrets.”84 Plaintiff’s petition for certiorari is currently

pending before the Supreme Court.85

Much confusion remains with respect to the amount of deference owed to the executive branch

once the state secrets privilege is invoked, as well as in determining the proper consequences of a

valid assertion of the privilege. Specifically, courts and commentators continue to disagree as to

the relationship between the Totten bar and the Reynolds privilege and the resulting question of

whether a successful assertion of the privilege requires dismissal of a given claim, or simply the

exclusion of privileged evidence—allowing the party to proceed with his claim through the

submission of other available evidence.

The Supreme Court’s Most Recent View

The 2010-2011 term saw the Supreme Court hear its first state secrets privilege case since the

2005 case of Tenet v. Doe. In General Dynamics Corporation v. United States, the federal

government validly asserted the privilege to prevent the disclosure of sensitive stealth technology

in a defense contract dispute with a government contractor.86 However, in addition to asserting the

privilege, the government also sought the return of progress payments made to the contractor.87

The complex factual scenario is discussed in greater length infra, however it is important to note

that the case focused on the consequences of a valid privilege in situations where the privilege

acts to inhibit a party’s ability to defend against the government’s breach of contract claim.

Although the case was more a contract remedy case than a state secrets privilege case,88 the

opinion contained potentially important language with respect to the evidentiary foundation of the

privilege and the scope of the Totten rule.

Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1087 (9th Cir. 2010).

Id. at 1084, 1087.

Id. at 1083, 1089.

Id. at 1079.

Petition for a Writ of Certiorari, No. 10-1078 (U.S. filed Dec. 7, 2010).

General Dynamics Corporation v. U.S., 563 U.S. __ (2011) (consolidated with Boeing v. U.S., No. 09-1302).

Id. at 1-5 (slip op.).

The Court felt the case focused on “our common-law authority to fashion contractual remedies in Governmentcontracting disputes.” Id. at 7.

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The General Dynamics opinion contained language suggesting a reaffirmation of the Court’s

view that the Reynolds privilege is based in the law of evidence rather than in the Constitution.89

The Court expressly stated that “Reynolds was about the admission of evidence. It decided a

purely evidentiary dispute by applying evidentiary rules.”90 The Court also clearly established

that the legal theory of nonjusticiability behind Totten and Tenet did not solely apply to cases

involving secret espionage contracts. In citing the two espionage contract cases, rather than

Reynolds, as the applicable authority in the case, the Court stated: “We think a similar situation

obtains here, and that the same consequence should follow.”91 In extending Totten into this new

context and in refusing to find an enforceable contract, the Court held that “where liability

depends upon the validity of a plausible ... defense, and when full litigation of that defense

‘would inevitably lead to the disclosure of’ state secrets, neither party can obtain judicial relief.”92

The Court also cited Totten in noting that “[b]oth parties—the government no less than

petitioners—must have assumed the risk that state secrets would prevent the adjudication of

claims of inadequate performance.”93

Other Examples of the State Secrets Privilege in

Practice

The United States has invoked the state secrets privilege in a wide array of cases, many of which

have resulted in the outright dismissal of the plaintiffs’ claims. This section of the report provides

a brief overview of a selection of recent, high-profile uses of the privilege.

Terrorist Surveillance Program

The state secrets privilege has played a large role in litigation arising from the Terrorist

Surveillance Program (TSP). The TSP was a Bush Administration program that authorized the

National Security Agency (NSA) to intercept various communications involving U.S. persons

within the United States without first obtaining warrants under the Foreign Intelligence

Surveillance Act (FISA).94 FISA provides a statutory framework for government agencies to seek

an order from the specialized Foreign Intelligence Surveillance Court that authorizes the

collection of foreign intelligence information via electronic surveillance.95 After the program was

revealed in 2005, dozens of claims were filed challenging its legality. Most of these claims were

filed against private telecommunications companies that had assisted the NSA by providing the

agency with telephone communication records, while others were filed against the NSA itself and

individual government officials.96 Given the sensitive nature of NSA’s surveillance activities, the

Id. at 5 (“[T]he state-secrets privilege, we said, had a ‘Well established’ pedigree ‘in the law of evidence.’”)(citing

Reynolds).

Id. at 6.

Id. at 7.

Id. at 7-8.

Id. at 12.

See, CRS Report R40980, Government Collection of Private Information: Background and Issues Related to the USA

PATRIOT Act Reauthorization, by (name redacted) and (name redacted).

50 U.S.C. §§ 1801-1808.

Compare, Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Ca. 2006), with Al-Haramain Islamic Foundation, Inc.

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federal government intervened in a majority of these cases, invoked the state secrets privilege,

and asked that the cases be dismissed. These early assertions of the privilege saw little success.

For example, in Hepting v. AT&T Corp., the district court denied the government’s motion to

dismiss under the state secrets privilege.97 The court reasoned that the Totten bar was inapplicable

under the facts of the case and that the “very subject matter” of the case was “hardly a secret.”98

The court noted that because of the broad public disclosures by AT&T and the government

relating to the TSP, it could not be concluded “that merely maintaining this action creates a

‘reasonable danger’ of harming national security.”99 The court would not “defer to a blanket

assertion of secrecy.”100

In 2008, however, Congress passed the FISA Amendments Act (FAA),101 which granted the

telecommunications companies retroactive immunity for assistance provided to NSA under the

TSP.102 Accordingly, federal courts have dismissed most of the TSP-related claims filed against

telecommunications companies pursuant to the protections provided in the FAA.

Challenges to the TSP program filed against the NSA or government officials, however, were not

impeded by the immunity granted to telecommunications companies under the FAA. Perhaps the

preeminent existing challenge to the TSP is Al-Haramain Islamic Foundation v. Bush.103 AlHaramain involves a claim by a Muslim charity—designated as a terrorist organization by the

United Nations—alleging that the NSA had unlawfully intercepted communications through the

TSP and provided those records to the Office of Foreign Assets Control (OFAC), which

subsequently froze Al-Haramain’s assets in violation of statutory, constitutional and international

law.104 Whereas other plaintiffs had struggled to obtain standing to challenge the TSP,105 OFAC

had inadvertently provided Al-Haramain with a secret document that allegedly proved that the

foundation had been subject to NSA surveillance.106 In response to the complaint, the government

asserted the state secrets privilege both narrowly, with respect to the top secret document, and

generally, arguing that the case must be dismissed as the “very subject matter” of the proceeding

was a state secret.107

On an interlocutory appeal, the Ninth Circuit rejected the government’s motion to dismiss the

case on the grounds that the subject matter of the claim was a state secret, but accepted the

government’s assertion of the privilege with respect to the top secret document inadvertently

(...continued)

v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006).

439 F. Supp. 2d 974 (N.D. Ca. 2006).

Id. at 994.

Id.

100

Id. at 995.

101

P.L. 110-261 (110th Cong.) (2008).

102

Under the FAA, a claim may not be maintained against a party for “providing assistance to an element of the

intelligence community, and shall promptly be dismissed” if the Attorney General certifies that the defendant provided

assistance in connection with the TSP and was given written assurances that the program was authorized by the

President and determined to be lawful or that the alleged assistance was not in fact provided. 50 U.S.C. § 1885a.

103

507 F.3d 1190 (9th Cir. 2007).

104

Id. at 1193-1195.

105

See, e.g., ACLU v. NSA, 93 F.3d 644 (6th Cir. 2007)(dismissing plaintiffs challenge to the TSP for lack of standing).

106

Al-Haramain Islamic Foundation Inc. v. Bush, 507 F.3d 1190, 1193 (9th Cir. 2007).

107

Id. at 1195.

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disclosed to Al- Haramain.108 The court held that enough was known about the TSP, including

confirmation of the program by a number of government officials, that “the subject matter of AlHaramain’s lawsuit can be discussed … without disturbing the dark waters of privileged

information.”109 Thus dismissal under the state secrets privilege at such an “early stage” was not

warranted.110 However, after in camera review of the top secret document, the court concluded

that “disclosure of information concerning the [secret document] … would undermine the

government’s intelligence capabilities and compromise national security,” therefore the document

itself was protected by the privilege and unavailable to the plaintiffs.111

While the court in Al-Haramain did not dismiss the case under the state secrets privilege, it did

determine that without the top secret document, the plaintiffs could not show the “concrete and

particularized” injury necessary to establish standing.112 In short, without the secret document, AlHaramain could not prove that it had actually been a subject of TSP surveillance. The court

therefore dismissed the claim for lack of standing, but left open the important question of whether

certain FISA provisions superseded and preempted the state secrets privilege.

FISA, Preemption, and the TSP

In addition to providing the framework for the authorized collection of foreign intelligence

information via electronic surveillance, FISA also provides a civil remedy for an “aggrieved

person ... who has been subjected to an electronic surveillance or about whom information

obtained by electronic surveillance of such person has been disclosed or used” in violation of

federal law.113 When evaluating the legality of a FISA order, the statute states that the court

shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that

disclosure or an adversary hearing would harm the national security of the United States,

review in camera and ex parte the application, order, and such other materials relating to the

surveillance as may be necessary to determine whether the surveillance of the aggrieved

person was lawfully authorized and conducted. In making this determination, the court may

disclose to the aggrieved person, under appropriate security procedures and protective orders,

portions of the application, order, or other materials relating to the surveillance only where

such disclosure is necessary to make an accurate determination of the legality of the

surveillance.114

The Ninth Circuit noted that FISA, “unlike the common law state secrets privilege, provides a

detailed regime to determine whether surveillance ‘was lawfully authorized and conducted.’”115

Were FISA to preempt the state secrets privilege, Al-Haramain would likely be able to proceed

with its claim, as the necessary portions of the secret document would no longer be considered

108

Id. at 1193 (“[W]e agree with the district court that the state secrets privilege does not bar the very subject matter of

this action. After in camera review and consideration of the government’s documentation of its national security claim,

we also agree that the Sealed Document is protected by the state secrets privilege.”).

109

Id. at 1198.

110

Id.

111

Id. at 1204.

112

Id. at 1205.

113

50 U.S.C. § 1810.

114

50 U.S.C. § 1806(f).

115

Al-Haramain, 507 F.3d at 1205.

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unavailable. Noting that the preemption question was “central to Al-Haramain’s ability to proceed

with the lawsuit,” the court remanded the case to the district court to determine whether FISA

preempts the state secrets privilege.116

On remand, the Federal District Court for the Northern District of California held that the FISA

procedures, which the court read as requiring judicial examination of the actual underlying

information, superseded the judicially created state secrets privilege as it is described in

Reynolds,117 but only if the plaintiffs could demonstrate that they had standing as “aggrieved

persons” under FISA.118 Therefore, before FISA’s preemption of the privilege would be triggered,

the plaintiffs would first need to prove, without reference to the privileged secret document, that

they were “aggrieved persons.” In January 2009, the district court found that the plaintiffs had

successfully met that burden through non-privileged evidence and could thus proceed with

discovery under FISA, which took precedence over the state secrets privilege.119 After a period of

significant resistance by the government in which “defendants denied plaintiffs counsel access to

any classified filings in the litigation,” on March 31, 2010, the court granted summary judgment

to the plaintiffs—based on available non-classified evidence—finding that the federal

government had violated the statutory requirements of FISA and engaged in the unlawful

surveillance of the plaintiffs.120

Government Contractors

The United States commonly intervenes in civil claims brought against government contractors,

especially military contractors, in order to protect state secrets.121 For example, the federal

government intervened and asserted the privilege in a 2008 tort case against Raytheon brought by

the estate of a deceased U.S. Navy lieutenant.

In White v. Raytheon, the wife of Navy combat pilot Nathan White alleged that a malfunction in

Raytheon’s Patriot Air & Missile Defense System was responsible for the death of her husband,

who had been killed when a wayward Patriot missile struck his F/A-18 fighter plane.122 During

discovery, the United States intervened to assert the privilege through a declaration filed by the

Secretary of the Army. The declaration asserted that any disclosure of “technical information

regarding the design, performance, functional characteristics, and vulnerabilities, of the PATRIOT

Missile system” along with any disclosure of the “rules of engagement authorized for, and

military operational orders applicable” to the missile system would jeopardize national security.123

The Secretary also provided the court with a classified supplemental declaration that further

elaborated on the impact of the disclosure of information specific to the case.124 After in camera

116

Id. at 1206.

See, In re NSA Telecomms Records Litig., 564 F. Supp. 2d at 1119.

118

Id. at 1137. See also 50 U.S.C. § 1801(k) (defining “aggrieved persons” under FISA).

119

In re NSA Telecomms. Records Litig., 595 F. Supp. 2d 1077, 1086 (N.D. Cal. 2009).

120

In re NSA Telecomms. Records Litig., 700 F. Supp. 2d 1182 (N.D. Cal. 2010).

121

See, e.g., McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009); Crater Corp. v. Lucent Technologies,

423 F.3d 1260 (Fed. Cir. 2005); DTM Research, L.L.C. v. AT&T Corp., 245 F.3d 327 (4th Cir. 2001). The

government’s intervention in previously discussed extraordinary rendition and electronic surveillance cases could also

be considered government contractor cases.

122

2008 U.S. Dist. LEXIS 102200 (D.Ma. 2008).

123

Id. at 4

124

Id. at 17.

117

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review of the supplemental declaration, the district court judge held that though the plaintiff could

potentially make out a prima facie case absent the privileged information, “I see no practical

means by which Raytheon could be permitted to mount a fair defense without revealing state

secrets.”125 The court thus concluded that it had “no alternative but to order the case

dismissed.”126

The Supreme Court heard oral arguments on January 18, 2011, in a separate government

contractor case involving the invocation of the state secrets privilege by the federal government.

The complex case pertains to the consequences of a valid claim of privilege in cases where the

assertion of the privilege acts to inhibit a party’s ability to defend against an action of the federal

government. The combined cases of General Dynamics v. U.S and Boeing v. U.S involve a

contract entered into in 1988 to design and build a new stealth capable, carrier-based A-12

Avenger.127 By 1990, however, the contractors had fallen behind in the project by missing

required deadlines, which resulted in the Navy terminating the contract in 1991.128 As a result of

the default termination, the Navy demanded that the contractors return $1.35 billion in progress

payments.129 Although the Navy terminated the contract, it is important to note that it was the

contractors who initiated the present litigation with a suit under the Contract Disputes Act.130

Filed with the U.S. Court of Federal Claims, the contractors’ suit argued that a lack of cooperation

and support from the Pentagon had caused the project delays—resulting in a termination of

convenience, rather than a termination for default.131 The contractors asked the court to deny the

government’s demand for the return of the $1.35 billion in progress payments and award the

contractors certain damages. The Navy maintained that the contract was terminated due to default

by the contractors.

One of the contractors’ chief arguments was that by not providing the companies access to its

existing stealth technology, as it had allegedly promised,132 the Navy had breached its duty to

“disclose critical information to a contractor that is necessary to prevent the contractor from

unknowingly pursuing a ruinous course of action.”133 By withholding its “superior knowledge” of

stealth technology, the contractors asserted, it was the Navy that had caused the default. In

support of this “superior knowledge” argument, the contractors sought to obtain evidence relating

to that technology. The federal government responded by invoking the state secrets privilege,

arguing that “the government could not have an implied duty to reveal classified information

pertinent to the A-12 program that would threaten national security.”134 Both the Court of Federal

Claims and the U.S. Court of Appeals for the Federal Circuit accepted the claim of privilege and

barred evidence of the Navy’s stealth technology from the litigation.135 Without the privileged

125

Id.

127

General Dynamics Corp. v. U.S. (U.S. filed April 23, 2010).

128

See, McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009).

129

McDonnell Douglas Corp. v. U.S., 323 F.3d 1006, 1011 (Fed. Cir. 2003).

130

41 U.S.C. § 609(a).

131

See, McDonnell Douglas Corp. v. U.S., 35 Fed. Cl. 358 (1996). Whether the contract was terminated for “default”

or “convenience” governs the recovery available to the government, including the return of the progress payments at

issue in this case.

132

Petition for Certiorari, Nos. 091298 and 09-1302 (U.S. filed April 23, 2010) at 2.

133

McDonnell Douglas Corp. v. U.S., 323 F.3d 1006 (Fed Cir. 2003).

134

McDonnell Douglas Corp. v. U.S., 182 F.3d 1319 (Fed. Cir. 1999).

135

McDonnell Douglas Corp. v. U.S., 323 F.3d 1006, 1020-1024 (Fed. Cir. 2003).

126

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evidence, the contractors’ “superior knowledge” defense was rejected. Ultimately, after a series of

decisions by the Court of Federal Claims and the Federal Circuit, the Federal Circuit determined

that the federal government had properly terminated the contract for default.136 The government

subsequently asked for the return of the $1.35 billion in progress payments plus appropriate

interest.137

The Supreme Court vacated and remanded the Federal Circuit’s decision.138 The Court had

granted a writ of certiorari to consider the question of “whether the government can maintain its

claim against a party when it invokes the state secrets privilege to completely deny that party a

defense to a claim.”139 Thus, in holding that neither the government’s claim nor the contractors’

defense could be “judicially determined” in light of the valid assertion of the privilege, the

Court’s opinion focused solely on the consequence of the invocation of the privilege in the

context of this case, rather than an examination of whether the invocation of the privilege was

proper.140 In crafting a remedy, the Court looked to Totten and Tenet in determining that the

parties must be left “where they stood when they knocked on the courthouse door.”141 As the

Court had previously done in refusing to enforce espionage contracts, “rather than tempt fate, we

leave the parties ... where we found them the day they filed suit.”142 Thus the government could

not claim the $1.35 billion in progress payments, nor could the contractor pursue its claim for

damages under the theory that “superior knowledge” was withheld.143 The Court also included

language in an attempt to limit the future application of the opinion in the state secrets context,

declaring: “Our decision today clarifies the consequences of [the privilege’s] use only where it

precludes a valid defense in Government-contracting disputes, and only where both sides have

enough evidence to survive summary judgment but too many of the relevant facts remain

obscured by the state-secrets privilege to enable a reliable judgment.”144

Employment Cases

The state secrets privilege also arises in employment-related claims against national security

agencies.145 The federal government has generally argued that these cases threaten to disclose

“intelligence-gathering methods or capabilities, and disruption of diplomatic relations with

foreign governments.”146 Sterling v. Tenet, for example, involved a racial discrimination claim

brought against the Director of the CIA.147 Under the facts of the case, Jeffrey Sterling, a CIA

Operations Officer, alleged that he was subject to unlawful discriminatory practices during his

136

See, McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009).

Petitioners report that the government is demanding $2.9 billion. Petition for Certiorari, at 11.

138

General Dynamics Corp. v. U.S., 563 U.S. __ 2011.

139

General Dynamics Corp. v. U.S., 131 S. Ct. 62 (2010).

140

General Dynamics, 563 U.S. __ at 12.

141

Id. at 9.

142

Id. at 7.

143

Id. at 10-12. The court admitted that “[n]either side will be entirely happy with the resolution we reach today.”) Id.

at 10.

144

Id. at 13-14.

145

See, e.g., Jane Doe v. CIA, 576 F.3d 95 (2nd Cir. 2009); Edmonds v. DOJ, 323 F. Supp. 2d 65 (D.D.C. 2004).

146

Sterling v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005).

147

Id.

137

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employment at the CIA in violation of Title VII of the Civil Rights Act.148 In response, the CIA

invoked the state secrets privilege and asked the district court to dismiss the case, relying on an

affidavit submitted by CIA Director George Tenet, alleging that litigating the factual issues of the

claim would “compromise CIA sources and methods, threaten the safety of intelligence sources,

and adversely affect foreign relations.”149 The district court granted the CIA’s motion to dismiss,

concluding that the state secrets privilege “barred the evidence that would be necessary to state a

prima facie claim.”150

On appeal, the Fourth Circuit upheld the dismissal. The court asserted that Sterling could not

prove employment discrimination “without exposing at least some classified details of the covert

employment that gives context to his claims.”151 In dismissing the claim, the Fourth Circuit, as it

did in El-Masri, took a broad view of the consequences of a claim in which the “very subject

matter” is itself a state secret, holding that “dismissal follows inevitably when the sum and

substance of the case involves state secrets.”152

Targeted Killing

Another recent invocation of the state secrets privilege has come in the context of the United

States alleged policy on targeted killings. In Al-Aulaqi v. Obama, the father of a U.S.-born

Yemeni cleric and Specially Designated Global Terrorist,153 brought a claim against the federal

government challenging his son’s alleged inclusion on a supposed CIA target kill list. The

plaintiff argued that inclusion on the CIA list meant his son was subject to a “standing order” that

permits the CIA or [Joint Special Operations Command] to kill him without regard to whether

lethal force was lawful under the circumstances in violation of the Fourth and Fifth Amendments

of the U.S. Constitution.154 The federal government responded by arguing that the plaintiff lacked

standing to bring the claim on behalf of his son; that the claim was barred by the political

question doctrine; and, in the alternative, that the claim should be dismissed under the state

secrets privilege on the grounds that evidence protected by the privilege “would be necessary to

litigate each of plaintiff’s claims.”155

In support of the government’s claim of privilege, the Director of National Intelligence, the

Director of the Central Intelligence Agency, and the Secretary of Defense submitted declarations

asserting that disclosure of certain evidence connected to the case could cause “exceptionally

grave damage to the national security of the United States.”156 Specifically, the government

148

Id. at 341.

Id. at 346.

150

Id. at 342.

151

Id. at 346. “Proof of these allegations would require inquiry into state secrets such as the operational objectives and

long-term missions of different agents, the relative job performance of these agents, details of how such performance is

measured, and the organizational structure of CIA intelligence gathering.” Id. at 347.

152

Id. at 347. Sterling is currently facing a criminal prosecution for alleged disclosure of national defense information.

See, Former CIA Officer Arrested for Alleged Unauthorized Disclosure of National Defense Information and

Obstruction of Justice, Jan. 6, 2011. Available at http://www.justice.gov/opa/pr/2011/January/11-crm-015.html.

153

727 F. Supp. 2d 1 (D.D.C. 2010). The government alleges that Al-Aulaqi has significant ties to terrorist groups. Id.

at 10.

154

Id. at 11.

155

Id. at 53.

156

See, Declaration in Support Formal Claim of State Secrets Privilege, James R. Clapper, Director of National

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149

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The State Secrets Privilege

asserted that the litigation could lead to the disclosure of “information needed to address whether

or not, or under what circumstances, the United States may target a particular foreign terrorist

organization and its senior leadership” and “criteria governing the use of lethal force.”157 In

addition to the public declarations, the government also provided the court with supplemental

confidential declarations for in camera review.

The district court ultimately dismissed the case for lack of standing and nonjusticiability under

the political question doctrine without reaching the state secrets privilege claim.158 However, the

court seemed to imply that dismissal would have been warranted under the privilege. In dicta, the

court noted that “given the nature of the state secrets assessment here based on careful judicial

review of classified submissions to which neither plaintiff nor his counsel have access, there is

little that plaintiff can offer with respect to this issue.”159

Terrorist Screening Database

The state secrets privilege has also arisen in claims associated with the Terrorist Screening

Database (TSDB). For example, a federal district court rejected the government’s claim of

privilege in a 2008 case entitled Rahman v. Chertoff. 160 Rahman involved a claim by a class of

plaintiffs for wrongful detention stemming from repeated encounters with law enforcement while

crossing the border. In an effort to prove that they were “misidentified” or “overclassified,” the

plaintiffs sought to obtain evidence proving their existence in the TSDB.161 Citing national

security concerns, the federal government asserted the privilege with respect to any information

“tending to confirm or deny whether the plaintiffs are now or ever have been listed in the

TSDB.”162 In support of the claim, the government argued that if an individual who was engaged

in terrorist activity had knowledge of whether he was included on the TSDB that person may

“alter the nature or extent of his terrorism-related activity, or take new precautions against

surveillance ... change his appearance or acquire false identification to avoid detection ... [or]

even go into hiding.”163

The federal district court rejected the government claim of privilege and ordered that the

information related to the TSDB be disclosed to plaintiffs pursuant to a protective order.164 In

reaching its decision, the court determined that the plaintiffs had made a strong showing of

necessity to obtain the information and that defendants had “failed to establish that, under all the

circumstances of this case, disclosure of that information would create a reasonable danger of

(...continued)

Intelligence, Al-Aulaqi v. Obama, No. 10-cv-1469 (D.D.C. 2010).

157

Al-Aulaqi, 727 F. Supp. 2d at 53.

158

Id. at 54.

159

Id.

160

Rahman v. Chertoff, 2008 U.S. Dist. LEXIS 32356 (N.D. Ill. 2008).

161

Id. at 4.

162

Id. at 17.

163

Id. at 23. The government also argued that disclosure of the requested information could “reveal sources and

methods” of gathering intelligence. Id. at 24.

164

Id. at 33-34. The government had also asserted the privilege with respect o the disclosure of the contents of FBI

investigative files, and agency policy and procedure documents. The court determined that the much of the FBI files

were protected but that the court would require in camera review to separate protected information from responsive,

non-protected information. The court held that the policy and procedure documents were fully protected. Id. at 42-47.

Congressional Research Service

The State Secrets Privilege

jeopardizing national security.”165 The court noted that the government had raised only “general

concerns” and refused to accept the government’s assertion that that knowledge of ones TSDB

status would allow one to alter their activity so as to avoid surveillance. The court concluded that

where a plaintiff has “been stopped at border entries on numerous occasions ... there is little force

to the argument that revealing their TSDB status will alert [the plaintiff] for the first time that

they have been under government scrutiny. [W]e expect that plaintiffs who have been repeatedly

stopped when entering the border have been alerted to the fact that they are or may be of interest

to the FBI or other governmental investigative authorities.”166

Conclusion

The federal courts continue to wrestle with the precise contours of the state secrets privilege.

Although the privilege has been invoked in a significant number of cases in a range of areas of

the law, a variety of important questions have yet to be resolved in an authoritative manner.

Unsettled issues include whether the state secrets privilege is more accurately defined as a

common law evidentiary privilege or a constitutional doctrine; the degree of deference to be

accorded to the executive branch during a court’s independent evaluation of an assertion of the

privilege; the circumstances under which a valid claim of privilege must result in outright

dismissal as opposed to allowing the claim to proceed absent the privileged evidence; and, finally,

the scope of Totten and the nature of the relationship between the Reynolds privilege and the

Totten bar.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

165

166

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Id. at 34.

Id. at 26 (internal quotation marks omitted).

Congressional Research Service

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