The State Secrets Privilege: National Security Information in Civil Litigation
Congressional research reportApr 28, 2022
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The State Secrets Privilege: National Security
Information in Civil Litigation
April 28, 2022
Congressional Research Service
https://crsreports.congress.gov
R47081
SUMMARY
The State Secrets Privilege: National Security
Information in Civil Litigation
R47081
April 28, 2022
Jennifer K. Elsea
Over time, the Supreme Court of the United States has developed the common law doctrine
Legislative Attorney
known as the “state secrets privilege,” which protects sensitive national security information
from being disclosed in civil litigation. In particular, there are two seminal cases that discuss the
Edward C. Liu
privilege’s applicability. First, in the 1876 case of Totten v. United States, the Court held that the
Legislative Attorney
judiciary lacks jurisdiction to hear a suit in which the underlying subject matter is a state secret if
the suit “would inevitably lead to the disclosure of matters which the law itself regards as
confidential.” Second, based on the Court’s 1953 decision in Reynolds v. United States, the Court
has permitted the government to invoke the state secrets privilege more narrowly to protect only
certain pieces of sensitive evidence if there is a reasonable danger that disclosure during litigation “will expose military
matters which, in the interest of national security, should not be divulged.”
A frequent question in litigation involving the state secrets doctrine is how far courts should scrutinize the government’s
assertions of the risk of disclosure once the privilege has been formally invoked. Reynolds recognized that it is the role of the
judiciary to evaluate the validity of a claim of privilege, but it declined to require courts to 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.” 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.” In light of this dilemma, the Court charted 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.
During its October 2021 Term, the Supreme Court decided two cases involving the state secrets privilege. In United States v.
Zubaydah, the Court determined that a court cannot declare that classified information apparently in the public domain is not
subject to the state secrets privilege when the United States has not officially confirmed or denied such information. In
Federal Bureau of Investigation v. Fazaga, the Court decided that certain Foreign Intelligence Surveillance Act of 1978
(FISA) provisions, which specifically require courts to review the underlying classified FISA applications and information to
determine the lawfulness of surveillance, do not displace the traditional Reynolds privilege that protects information that
would harm national security if disclosed.
In addition to discussing these two recent decisions, this report presents 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 highprofile examples of how the privilege has been applied. Some examples of areas in which the government has invoked the
privilege include electronic surveillance, government contract cases, employment cases, targeted killings, the terrorist
screening database, extraordinary rendition, and a case involving alleged Saudi liability for the terrorist attacks of September
11, 2001. The report concludes by describing some considerations for Congress.
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The State Secrets Privilege: National Security Information in Civil Litigation
Contents
Totten v. United States: State Secrets Subject Matter Jurisdictional Bar ......................................... 1
United States v. Reynolds: State Secrets Evidentiary Privilege ....................................................... 2
Asserting the Privilege .............................................................................................................. 3
Evaluating the Validity of the Privilege .................................................................................... 3
The Effect of the Privilege ........................................................................................................ 5
Preemption of the State Secrets Privilege........................................................................................ 8
Deference to the Executive Branch ................................................................................................11
Other Examples of the State Secrets Privilege .............................................................................. 18
Electronic Surveillance ........................................................................................................... 18
Government Contractors ......................................................................................................... 20
Employment Cases .................................................................................................................. 23
Targeted Killing....................................................................................................................... 27
Terrorist Screening Database .................................................................................................. 27
Extraordinary Rendition .......................................................................................................... 28
9/11 Litigation ......................................................................................................................... 30
Considerations for Congress.......................................................................................................... 32
Contacts
Author Information........................................................................................................................ 33
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The State Secrets Privilege: National Security Information in Civil Litigation
he Supreme Court of the United States has long recognized a common law government
privilege against the disclosure of state and military secrets in civil litigation known as the
“state secrets privilege.”1 The United States has invoked this privilege in two broad
categories of cases. First, beginning with the 1876 case of Totten v. United States, the government
has argued that if the underlying subject matter of a lawsuit is a state secret, then the courts must
dismiss the action for lack of jurisdiction.2 In the second category of cases, the government has
invoked the state secrets privilege to bar the disclosure or introduction of certain pieces of
national security information into evidence based on the Court’s 1953 decision in Reynolds v.
United States.3
T
In its October 2021 Term, the Supreme Court considered two cases touching on different aspects
of the state secrets doctrine. The first case, United States v. Zubaydah, asked whether a court can
compel the depositions of former Central Intelligence Agency (CIA) contractors over the
government’s assertion of the state secrets privilege.4 In the second case, Federal Bureau of
Investigation v. Fazaga, the Court considered whether the Foreign Intelligence Surveillance Act
of 1978 (FISA) displaced the common law state secrets privilege.5 In both cases, which are
discussed in more detail below, the Supreme Court upheld the government’s assertion of the
privilege.
This report presents 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. The report also describes
some considerations for Congress.
Totten v. United States: State Secrets Subject Matter
Jurisdictional Bar
The Supreme Court first recognized the state secrets privilege in the 1876 case of Totten v. United
States.6 Totten and its progeny determined that dismissal of an action is warranted when 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.”7
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.8 The
Court dismissed the claim, articulating 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.”9 The Court reasoned that “[t]he
service stipulated by the contract was a secret service; the information sought was to be obtained
clandestinely, and was to be communicated privately; the employment and the service were to be
1 Gen. Dynamics Corp. v. United States, 563 U.S. 478, 484 (2011).
2 Id. at 486 (citing Totten v. United States, 92 U.S. 105 (1876)).
3 Id. at 484-85 (citing Reynolds v. United States, 345 U.S. 1 (1953)).
4 United States v. Husayn (Abu Zubaydah), 142 S. Ct. 959 (2022).
5 Fed. Bureau of Investigation v. Fazaga, 142 S. Ct. 1051, 1060 (2022).
6 92 U.S. 105 (1876).
7 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083, 1084 (9th Cir. 2010).
8 Id.
9 Totten v. U.S., 92 U.S. at 107.
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equally concealed.”10 Thus, under Totten, federal courts may not review controversies over secret
espionage contracts. The Supreme Court affirmed the “Totten bar”11 in Tenet v. Doe, a case
involving a contract claim against the CIA brought by alleged Cold War spies.12 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 [g]overnment.”13
In 2011, the Supreme Court again applied the Totten bar to dismiss a suit against the United States
but this time outside the context of espionage contracts. In General Dynamics Corp. v. United
States, the federal government asserted the state secrets privilege to prevent the disclosure of
sensitive stealth technology in a defense contract dispute with a government contractor who had
set forth a prima facie valid affirmative defense to the government’s allegation of breach of
contract.14 Citing Totten and Tenet, the Court stated: “We think a similar situation obtains here,
and that the same consequence should follow.”15 Namely, that the underlying subject matter of the
suit rendered it non-justiciable and that the parties must be left “where they stood when they
knocked on the courthouse door.”16
In extending Totten into this new context and in refusing to find an enforceable contract, the
Court held that “[w]here 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.”17 The Court explained that “[b]oth parties—the [g]overnment no
less than petitioners—must have assumed the risk that state secrets would prevent the
adjudication of claims of inadequate performance.”18
United States v. Reynolds: State Secrets Evidentiary
Privilege
The state secrets privilege has also been invoked to protect certain pieces of evidence from
discovery. The Supreme Court first articulated the modern analytical framework of this
evidentiary state secrets privilege in the 1953 case of United States v. Reynolds.19 Reynolds
involved multiple wrongful death claims against the government brought by the widows of three
civilians who died aboard a military aircraft that crashed while testing secret electronic
equipment.20 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.21 The Air Force opposed disclosure
of those documents, as the aircraft and its occupants were engaged in a “‘highly secret mission of
10 Id. at 106.
11 The Totten bar has been labeled a “rule of non-justiciability, akin to a political question.” Al-Haramain Islamic
Found. Inc. v. Bush, 507 F.3d 1190, 1197 (9th Cir. 2007).
12 544 U.S. 1 (2005).
13 Id. at 8.
14 General Dynamics Corporation v. United States, 563 U.S. 478, 482 (2011).
15 Id. at 486.
16 Id. at 487.
17 Id. at 486 (quoting Totten v. United States, 92 U.S. 105, (1876)).
18 Id. at 491.
19 345 U.S. 1 (1953).
20 Id. at 3.
21 Id.
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the Air Force’” at the time of the crash.22 The federal district court ordered the Air Force to
produce the documents so that it could independently determine whether they contained
privileged information.23 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,24 and the U.S. Court of
Appeals for the Third Circuit (Third Circuit) subsequently affirmed the district court’s ruling.25
The Supreme Court granted certiorari “[b]ecause an important question of the [g]overnment’s
privilege to resist discovery [was] involved.”26
Asserting the Privilege
The Court has stated that “Reynolds was about the admission of evidence.”27 In Reynolds, the
Court identified several requirements to be met in order for the government to assert the privilege
against revealing state secrets in litigation. The first requirement identified is a largely procedural
hurdle to assure that the privilege is not “lightly invoked.”28 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 by that officer.”29 Second, the
privilege belongs exclusively to the government and therefore cannot be validly asserted or
waived by a private party.30 In cases in which the government is not a party, but the nature of the
claim is such that litigation could lead to the disclosure of evidence that would threaten national
security, the government must intervene and assert the state secrets privilege.31 The government’s
failure to formally assert the privilege has previously been excused because courts have held that
strict adherence to the requirement would have had little or no benefit.32 Finally, courts have held
that the privilege may be raised at any time, including prospectively at the pleading stage of the
litigation or during discovery in response to specific requests for information.33
Evaluating the Validity of the Privilege
In addition to the aforementioned requirements, the Court in Reynolds held that courts “must
determine whether the circumstances are appropriate for the claim of privilege, and yet do so
22 Id. at 4-5. The Air Force did offer to make the surviving crew available for examination by the plaintiffs. Id. at 5.
23 Id. at 5.
24 Id.
25 Reynolds v. United States, 192 F.2d 987 (3rd Cir. 1951).
26 Reynolds, 345 U.S. at 2.
27 General Dynamics Corp. v. United States, 563 U.S. 478, 485 (2011).
28 Reynolds, 345 U.S. at 7.
29 Id. at 8.
30 Id. at 7 (“The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived
by a private party.”).
31 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).
32 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, and where the court reasoned that imposition of the
formal requirement would have had little or no benefit in this circumstance).
33 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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without forcing a disclosure of the very thing the privilege is designed to protect.”34 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.”35 The Court in
Reynolds determined that 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.”36 Accordingly, courts have held that the government “bears the
burden of satisfying a reviewing court that the Reynolds reasonable-danger standard is met.”37
Moreover, 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.38 Therefore, while 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.”39 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.40
How thoroughly a court reviews the government’s assertion of the state secrets privilege varies.
Generally, the depth of the inquiry corresponds to the court evaluating the opposing party’s need
for the information and the government’s need to prevent disclosure.41 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
where the non-government party’s need for the information is high.42 Under other circumstances,
however, the evidence may be less central to the plaintiffs’ case such that the court may be
satisfied that the evidence warrants protection based solely on the executive branch’s assertions.43
If a court can determine that the privilege is valid without in camera review, the Supreme Court
has held that 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.”44
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 specified 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.”45 In the case of Reynolds, the Court
explained that the Air Force had offered to make the surviving crew members available for
examination by the plaintiffs.46 Because of this alternative avenue of information, the Court was
34 Reynolds, 345 U.S. at 8.
35 Id.
36 Id. at 10.
37 El-Masri v. U.S., 479 F.3d 296, 305 (4th Cir. 2007).
38 Reynolds, 345 U.S. at 11.
39 Id. at 9-10.
40 Id. at 9.
41 Id. at 11 (“Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted . . . .”).
42 E.g., Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) (holding that in camera review of evidence was proper given
that plaintiffs’ suit depended upon the information).
43 E.g., Reynolds, 345 U.S. at 11 (holding that availability of non-privileged alternative evidence undercut need for in
camera review to evaluate validity of invocation of state secrets privilege).
44 Id. at 10.
45 Id. at 11.
46 Id. at 5.
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satisfied that the privilege was valid based primarily upon representations made by the
government regarding the contents of the documents.47 Conversely, less deference to the
government’s representations may be warranted where a private litigant has a strong need for the
information.48
When possible, courts have attempted to “disentangle” privileged evidence from non-privileged
evidence to allow for the non-sensitive information’s release.49 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. 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.50 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.”51 Adherence to the mosaic theory may result in greater judicial deference to
the assertions of intelligence agencies.52
The Effect of the Privilege
If the privilege is appropriately invoked under Reynolds, it is absolute, and the disclosure of the
underlying information cannot be compelled by the court. 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 dismiss a claim in its entirety or allow a
case to proceed “with no consequences save those resulting from the loss of evidence.”53 Some
courts have taken a more restrained view, holding that the privilege protects only specific pieces
of privileged evidence, while others have taken a more expansive view, holding that the privilege,
47 Id. at 11. Years later, the daughter of one of the deceased civilians discovered the declassified accident report on the
internet and filed with other plaintiffs a motion for leave to file a petition for a writ of error coram nobis with the
Supreme Court, arguing that the government committed fraud on the Court and alleging that the accident report did not
contain any information about secret equipment or activities. See Herring v. United States, 424 F.3d 384, 388 (3d Cir.
2005). The Supreme Court denied the motion. In re Herring, 539 U.S. 940 (2003). The plaintiffs then filed their case
with the district court, which granted the government’s motion to dismiss, in part on the basis of the court’s view that
“against this political and technical backdrop, it seems that the accident investigation report may have reasonably
contained sufficient intelligence, if not about the secret equipment or mission, then about ongoing developments in Air
Force technical engineering, to warrant an assertion of the military secrets privilege.” Herring v. United States, 2004
WL 2040272, at *9 (E.D. Penn. 2004). The Third Circuit affirmed, holding that because there was an “obviously
reasonable truthful interpretation of the statements made by the Air Force,” there was no fraud upon the court. Herring,
424 F.3d at 392, cert. denied, 547 U.S. 1123 (2006).
48 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.”).
49 Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).
50 Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (“[I]f seemingly innocuous information is part of a classified
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.”).
51 Reynolds, 345 U.S. at 8.
52 Ellsberg, 709 F.2d at 57 n. 31 (citing the fact that modern foreign intelligence gathering “is more akin to the
construction of a mosaic” as one of several factors that “limit judicial competence to evaluate the executive’s
predictions of the harms likely to result from disclosure”).
53 Al-Haramain Islamic Found., 507 F.3d at 1204 (citing Ellsberg, 709 F.2d at 64).
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with its constitutional underpinnings, often requires deference to the executive branch’s
assertions, which may lead to dismissal.54 Whether the assertion of the state secrets privilege is
fatal to a particular suit or merely excludes privileged evidence from introduction or discovery
during litigation is a question that is highly dependent upon the specific facts of the case and, in
the absence of Supreme Court precedent, whether there is binding appellate precedent for the
particular circuit in which the case is brought.
Pursuant to existing state secrets privilege jurisprudence, the valid invocation of the privilege may
generally result in the outright dismissal of the case in three circumstances. First, a case may be
dismissed if a plaintiff cannot establish a prima facie case without the protected evidence. 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 (NSA’s) alleged
interception of international communications to and from persons who had been targeted by the
CIA.55 After deciding that the claim of privilege was valid, the D.C. Circuit affirmed the
protection of that information from discovery.56 Although some non-privileged evidence that the
plaintiffs were targeted by the CIA existed, the court dismissed the suit after deciding that the
plaintiffs would not be able to establish a prima facie case of unlawful electronic surveillance
without the privileged information.57 Although depriving litigants of an opportunity to obtain
redress may seem like a harsh result, some courts have characterized dismissal to protect the
greater good as the less harsh remedy.58
Second, a case may also be dismissed where the privilege deprives a litigant of evidence
necessary to establish a valid defense.59 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.60 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.61 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.62
Therefore, the dismissal of that action was required once the privilege was determined to be
valid.63
Third, a court may conclude that a case must be dismissed where the “privileged information will
be so central to the litigation that any attempt to proceed will threaten that information’s
disclosure.”64 For example, in Sterling v. Tenet, the U.S. Court of Appeals for the Fourth Circuit
54 Compare, Ellsberg, 708 F.2d at 64-65 (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 privilege).
55 Halkin v. Helms, 598 U.S. 1, 4-5 (D.C. Cir. 1978).
56 Id. at 9.
57 Id. at 10.
58 Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998) (citing Bareford v. General Dynamics Corp, 973 F.2d 1138,
1144 (5th Cir 1992), cert. denied, 507 U.S. 1029 (1993)).
59 See, e.g., Edmonds v. U.S., 323 F. Supp. 2d 65, 77-79 (D.D.C. July 6, 2004).
60 Molerio v. FBI, 749 F.2d 815, 824-825 (D.C. Cir. 1984).
61 Id. at 820.
62 Id. at 821-22.
63 Id. at 825-26.
64 El-Masri v. United States, 479 F.3d 296, 308 (4th Cir. 2007) (citing Sterling v. Tenet, 416 F.3d 338, 347-348 (4th
Cir. 2005)).
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held that a racial discrimination suit brought by a covert CIA officer against the agency would
necessarily center around the methods and operations of the CIA and must be dismissed as a
result.65
Given the relatively limited number of decisions in this area, there may be some uncertainty
regarding what the effect of the privilege will be. For example, in 2017, the Department of
Homeland Security (DHS) issued a binding operational directive requiring federal agencies to
remove software directly or indirectly supplied by a specific cybersecurity company from all
federal information systems based on concerns that such software posed a security risk.66 The
excluded company sued DHS, alleging that the directive had been issued in violation of the
Administrative Procedure Act (APA) because, inter alia, the directive was arbitrary, capricious,
and unsupported by substantial evidence.67 In the context of APA challenges, courts review
agency decisions based on the information that the agency had considered at the time it made the
decision.68 In this case, plaintiffs alleged that DHS had stated that its decision was based on only
unclassified information but stated that it had also reviewed classified information that supported
its decision.69 The suit was ultimately dismissed on jurisdictional grounds before the court could
address the merits of the plaintiffs’ APA claims,70 but it may still pose questions about what the
proper resolution should have been if the government had invoked the state secrets doctrine with
respect to information that might otherwise have been included in the administrative record.
Assuming the court found the invocation of the privilege to be valid, it could be argued that the
excision of such information from the administrative record is in tension with the principle that
the court “should have before it neither more nor less information than did the agency when it
made its decision” and that the decision should therefore be remanded to the agency because “the
reviewing court simply cannot evaluate the challenged agency action on the basis of the record
before it.”71 Alternatively, if the privileged information is central to the agency’s justification for
its decision, removal of the information may deprive the agency of a valid defense to the APA
challenge, and it could be argued that the suit should consequently be dismissed pursuant to
Molerio v. FBI.72 Given this uncertainty, these questions may be an area in which future state
secrets privilege litigation will focus.
65 Sterling v. Tenet, 416 F.3d at 348.
66 82 Fed. Reg. 43,782 (Sept. 19, 2017).
67 Memorandum of Law in Support of Plaintiffs’ Application for Preliminary Injunction, Kaspersky Lab, Inc. v. DHS,
No. 17-CV-02697 at 4 (Jan. 17, 2018) [hereinafter “Kaspersky Motion”].
68 IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) (“It is a widely accepted principle of administrative law
that the courts base their review of an agency's actions on the materials that were before the agency at the time its
decision was made.”); Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (“If a court is to
review an agency's action fairly, it should have before it neither more nor less information than did the agency when it
made its decision.”).
69 Kaspersky Motion, supra note 67, at 7.
70 The challenge to the DHS directive was consolidated with a separate suit challenging Section 1634 of the 2018
National Defense Authorization Act, P.L. 115-91, which similarly excluded plaintiffs’ software from federal
information systems. Kaspersky Lab, Inc. v. DHS, 909 F.3d 446, 453 (D.C. Cir. 2018). After holding that Section 1634
was not unconstitutional, the court dismissed the plaintiffs’ challenge to DHS directive because invalidating the
directive alone would not provide any redress for the plaintiffs. Id. at 453.
71 Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984).
72 See Molerio v. FBI, supra note 60.
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Preemption of the State Secrets Privilege
Courts frequently describe the evidentiary state secrets privilege as a common law doctrine that
has arisen through a series of judicial decisions.73 At the same time, Congress has also enacted
statutory provisions similarly addressing the use of or access to classified information in civil
litigation, frequently alongside provisions authorizing private litigants to seek judicial review of
actions the government has taken that may have been informed or based upon classified
information.74 The Supreme Court has recognized that Congress may abrogate common law
principles through statutory enactments, where the statute “speak[s] directly” to the question
addressed by common law.75 Therefore, questions may arise as to whether these congressional
enactments have otherwise affected the government’s ability to invoke the common law state
secrets privilege.
In FBI v. Fazaga, decided on March 4, 2022, the Supreme Court held that Congress did not
displace the common law state secrets privilege by enacting legislation specifically addressing
how national security information should be handled by courts in certain civil actions.76 The
specific civil action involved in Fazaga arose in the context of FISA.77 FISA provides a statutory
framework to authorize the collection of foreign intelligence information via electronic
surveillance but 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
73 E.g., Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007); In re Sealed Case, 494 F.3d
139, 142 (D.C. Cir. 2007); El-Masri, 479 F.3d at 303; Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546 (2d
Cir. 1991). Though described as a common law doctrine, courts have frequently indicated that the state secrets privilege
is also rooted in the “Art[icle] II duties” allocated to the President by the Constitution. United States v. Nixon, 418 U.S.
683, 710 (1974). See also El-Masri, 479 F.3d at 303 (“Although the state secrets privilege was developed at common
law, it performs a function of constitutional significance, because it allows the executive branch to protect information
whose secrecy is necessary to its military and foreign-affairs responsibilities.”); Department of the Navy v. Egan, 484
U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national
security . . . flows primarily from this Constitutional investment of power in the President . . . .”) (emphasis added).
74 E.g., 8 U.S.C. § 1189(c)(2) (providing that government may submit classified information ex parte and in camera
during judicial review of government’s designation of foreign terrorist organizations); 8 U.S.C. § 1536(a)(2)(B)
(providing that a judge may consider classified information in camera and ex parte in alien terrorist removal hearing);
21 U.S.C. § 1903(i) (providing that classified information may be submitted ex parte and in camera in any judicial
review of sanctions imposed on significant foreign narcotics traffickers); 31 U.S.C. § 5318A(f) (providing that
classified information may be submitted ex parte and in camera in any judicial review of a finding that a financial
institution is of primary money laundering concern); 41 U.S.C. § 1327(b)(4)(B)(iii) (requiring classified information to
be submitted in camera and ex parte in petitions for judicial review of orders excluding sources or covered articles
from the federal acquisition supply chain); 50 U.S.C. § 1702(c) (providing that classified information may be submitted
ex parte and in camera in any judicial review of sanctions imposed under International Emergency Economic Powers
Act); 50 U.S.C. § 1806(f) (requiring court to review FISA applications and other information in camera and ex parte to
determine whether surveillance was lawfully authorized and conducted); and 50 U.S.C. § 4565(e) (providing that civil
actions challenging findings or actions of the Committee on Foreign Investment in the United States (CFIUS) may be
brought only in the D.C. Circuit, but that classified information in the administrative record shall be submitted ex parte
and in camera, and maintained under seal, if the court determines that such information is necessary to resolve the
challenge).
75 United States v. Texas, 507 U.S. 529, 534 (1993) (explaining that “Congress does not write upon a clean slate” and
that the presumption in favor of retaining common law applies to federal and state common law); Isbrandtsen Co. v.
Johnson, 343 U.S. 779, 783 (1952) (holding that “[s]tatutes which invade the common law . . . are to be read with a
presumption favoring the retention of long-established and familiar [legal] principles, except when a statutory purpose
to the contrary is evident”).
76 Fed. Bureau of Investigation v. Fazaga, 142 S. Ct. 1051, 1060 (2022).
77 50 U.S.C. §§ 1801-1885c.
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such person has been disclosed or used” in violation of federal law.78 Aggrieved person is defined
under FISA to include not just the target of electronic surveillance but “any other person whose
communications or activities were subject to electronic surveillance.”79
Because of the sensitive national security information likely to be included in the affidavits and
supporting documentation accompanying a FISA application, the statute provides special
procedures to be used when courts are asked to evaluate the legality of a FISA order.80 For
example, if a criminal prosecution is based on information collected through FISA surveillance,
the defendant may challenge the lawfulness of that collection and seek to suppress the resulting
evidence. In addition to requiring the government to provide notice to “aggrieved person[s]” that
FISA information is intended to be used against them,81 the statute directs 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.82
Thus, FISA creates a process in which the government may utilize information collected under
FISA in “any trial, hearing, or other proceeding” against a private person “while withholding
materials related to that surveillance . . . in the interests of national security” and also “allow[ing]
an aggrieved person to challenge the government’s use of such evidence and have a court
evaluate the lawfulness of the government’s actions.”83 In these cases, FISA generally requires
the government to make the choice to “either disclose the material or forgo the use of
surveillance-based evidence.”84
The plaintiffs in Fazaga alleged that various covert FBI surveillance activities targeting them
violated FISA.85 The government invoked the state secrets privilege and sought to prevent the
disclosure or introduction of, among other things, information about the reasons the FBI may
have targeted plaintiffs for investigation.86 Pursuant to Reynolds, the district court considered
declarations made by the relevant government officials to determine whether the privilege had
been validly invoked but did not examine the underlying evidence itself.87 Based on these
78 50 U.S.C. § 1810.
79 50 U.S.C. § 1801(k).
80 50 U.S.C. § 1806(f).
81 50 U.S.C. § 1806(c).
82 Id. (emphasis added)
83 Wikimedia Found. v. Nat’l Sec. Agency, 14 F.4th 276, 300 (4th Cir. 2021).
84 Id. at 301 (citing S. REP. NO. 95-701, at 65). Some federal statutes that also address litigation involving classified
information in civil litigation expressly waive application of these FISA provisions with respect to those cases. E.g., 41
U.S.C. § 1327(b)(4)(B)(iii)(IV) (FISA provisions regarding notice, suppression, and ex parte and in camera review do
not apply in actions challenging orders excluding sources or covered articles from the federal acquisition supply chain)
and 50 U.S.C. § 4565(e)(4) (FISA use of information provisions shall not apply in civil challenges to CFIUS actions or
findings).
85 Fazaga, 142 S. Ct. at 1058.
86 Id. at 1058-59.
87 Fazaga v. FBI, 884 F.Supp. 2d 1022, 1039-42 (C.D. Cal. 2012).
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declarations, the district court found the privilege to be validly invoked and subsequently
dismissed the suit for failure to establish a prima facie case.88 On appeal, the U.S. Court of
Appeals for the Ninth Circuit (Ninth Circuit) held that “the district court should have relied on
FISA’s alternative procedures for handling national security information” which require the court
to examine the FISA application and other material in camera and ex parte.89 Specifically, the
Ninth Circuit held that Congress had displaced the common law Reynolds state secrets privilege
as applied to electronic surveillance within FISA’s purview.90
The Supreme Court unanimously reversed the Ninth Circuit, holding that Congress had not
displaced the state secrets privilege when it enacted FISA’s procedures for handling national
security information.91 The Court identified two main reasons for its holding. First, in light of the
general presumption against repeal of common law, the Court found FISA’s textual silence with
respect to the state secrets privilege to be “strong evidence that the availability of the privilege
was not altered in any way.”92
Second, the Court held that the state secrets privilege was not incompatible with FISA’s
procedures for handling national security information.93 Specifically, the Court held that the state
secrets privilege and FISA “(1) require courts to conduct different inquiries, (2) authorize courts
to award different forms of relief, and (3) direct the parties and the courts to follow different
procedures.”94 With respect to the nature of the courts’ inquiry, the Court explained that FISA’s
procedures are mainly concerned with the legality of surveillance while the state secrets privilege
requires courts to consider whether disclosure would harm national security.95 Similarly, the
Court held that a court cannot provide any relief under FISA if it determines that the surveillance
was lawful,96 whereas a court may “order the disclosure of lawfully obtained evidence if it finds
that disclosure would not affect national security.”97 Lastly, relating to procedure, the Court
explained that FISA requires the Attorney General to request in camera and ex parte review of
surveillance applications and information, while the state secrets privilege may be invoked by the
head of the department that has control over the matter.98
The Court’s decision in Fazaga was limited to the question of whether FISA displaced the state
secrets privilege.99 Consequently, the Court did not express an opinion on whether FISA’s
procedures are applicable only in suits brought by the United States, nor did the Court opine on
what the appropriate remedy should be in light of the invocation of the state secrets privilege in
88 Id. at 1049.
89 Fazaga v. Federal Bureau of Investigation, 965 F.3d 1015, 1039, 1052 (9th Cir. 2020).
90 Id. at 1039-40, 1043-48.
91 Fed. Bureau of Investigation v. Fazaga, 142 S. Ct. 1051, 1056 (2022).
92 Id. at 1060-61.
93 Id. at 1061.
94 Id.
95 Id.
96 Id. at 1062.
97 Id.
98 Id.
99 Id. at 1056.
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this case (i.e., dismissal or simple exclusion of the privileged evidence).100 As a result, the case
has been remanded to the Ninth Circuit to resolve those questions.101
Although the Court’s decision was specific to FISA, its reasoning would likely be applicable to
other statutes that similarly address how the government must submit classified information to
courts in the context of suits challenging some government action. For example, the Federal
Acquisition Supply Chain Security Act of 2018 (FASCSA) established a Federal Acquisition
Security Council to identify and address supply chain risks to federal information technology.102
Among other things, FASCSA authorizes the Secretaries of Homeland Security and Defense and
the Director of National Intelligence to issue orders excluding or removing sources and covered
articles from agency procurement actions and information systems.103 Sources subject to such an
order may seek judicial review of the order in the United States Court of Appeals for the D.C.
Circuit.104 FASCSA provides that during such review, the government may include classified
information in the administrative record and shall submit such information ex parte and in
camera for the court to determine whether it supports the challenged order.105 Based on the
Supreme Court’s decision in Fazaga, it could be argued that this provision of FASCSA does not
displace the state secrets privilege. This view would rely on FASCSA’s classified information
provision, like FISA’s, which does not expressly state an intent to displace the common law state
secret privilege and is also primarily concerned with the court’s evaluation of the legality of the
underlying government action rather than the risk to national security by disclosure.
Deference to the Executive Branch
The government has argued that courts should afford the “utmost deference” to its assertion of the
state secrets privilege.106 That argument was at the center of the case involving Zayn Al-Abidin
Muhammad Husayn (also known as Abu Zubaydah). Abu Zubaydah is currently a detainee at the
U.S. Naval Station at Guantanamo Bay, Cuba, and was the first suspected Al Qaeda detainee
rendered into CIA custody at various “black sites” abroad for interrogation, including allegedly at
“Detention Site Blue” in Poland, from December 2002 to September 2003.107 He sought
depositions from two former CIA contractors who helped devise the CIA’s “Enhanced
Interrogation Program” for submission to prosecutors in Krakow, Poland, to assist in a criminal
investigation of Polish officials’ “alleged complicity in claimed unlawful detention and torture of
Zubaydah.”108 The district court granted the application for discovery, and the United States filed
100 Id. at 1062-63. The respondents in Fazaga had argued that they could still state a claim using non-privileged
evidence from witnesses and public statements made by the FBI’s own informant. Brief for Respondents, Fazaga v.
FBI, No. 20-828, at 26 (Sept. 21, 2021). The effects of upholding the government’s assertion of the state secrets
privilege is discussed in more detail, supra at “The Effect of the Privilege”.
101 Fazaga, 142 S. Ct. at 1063.
102 41 U.S.C. §§ 1321-1328.
103 Id. § 1323(c).
104 Id. § 1327(b).
105 Id. § 1327(b)(4)(B)(iii).
106 See, e.g., Kasva v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (holding that the state secrets privilege “is
accorded the ‘utmost deference’ and the court’s review of the claim of privilege is narrow”).
107 In re Zayn Al-Abidin Muhammad Husayn, 2018 WL 11150135, *1 (E.D. Wash. Feb. 21, 2018).
108 Id. Abu Zubaydah states he has a right under Polish law to submit information in support of criminal investigations
and seeks to acquire testimony pursuant to 28 U.S.C. § 1782.
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a motion to intervene and to quash the subpoenas shortly after the court issued its order, arguing,
among other things, that the state secrets privilege bars the requested discovery.109
The government argued that the requested discovery was “predicated on a singular allegation that
the United States can neither confirm nor deny without risking significant harm to national
security—that is, whether or not the CIA conducted detention and interrogation operations in
Poland or with the assistance of the Polish Government” and argued that the entire line of inquiry
was foreclosed.110 The government further argued that the court should preclude discovery “in its
entirety.”111 Abu Zubaydah countered that the former contractors could provide valuable evidence
without confirming the location of the detention site or the cooperation of any particular
government112 and have done so in another case without opposition from the government.113 The
district court held that the Reynolds privilege, rather than the Totten bar, applied.114
Citing the European Court of Human Right’s (ECHR’s) findings, the Polish government
investigations, and the acknowledgement by the former President of Poland that Poland hosted a
CIA detention site, the district court found unconvincing the government’s argument that
“acknowledging, or denying, the fact the CIA was involved with a facility in Poland poses an
exceptionally grave risk to national security.”115 The court further determined that, although
confirming or denying Poland’s involvement would aid in Poland’s investigation, providing other
operational details about Poland’s role could pose an exceptional risk to national security.116 The
court stated that even seemingly innocuous facts could form a “mosaic” that could prove
damaging.117 Accordingly, the court concluded that the deposition could not move forward
without potential risk to national security.118
A divided panel of the Ninth Circuit reversed the district court’s decision.119 The majority defined
its task as a balance between the obligation to provide deference to executive branch decisions
regarding national security120 and the “‘obligation to review the [claim of state secrets privilege]
with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s
claim or justification of privilege.’”121
109 Id. The state secrets assertion was properly supported by a declaration of CIA Director Michael Pompeo with the
approval of the Attorney General. Id. at *5. The declaration asserted the privilege with respect to “1) information
identifying individuals involved with the Program; 2) information regarding foreign government cooperation with CIA;
3) information concerning the operation and location of clandestine overseas CIA facilities; 4) information regarding
capture and transfer of detainees; 5) intelligence information about detainees and terrorist organizations, including
intelligence obtained from interrogations; 6) information concerning intelligence sources and methods; and 7)
information concerning the CIA’s internal structure and administration.” Id. at *6.
110 In re Husayn, 2018 WL 11150135, at *3 (quoting government submission).
111 Id.
112 Id. at *4.
113 Id.
114 Id. at *6.
115 Id.
116 Id.
117 Id. at *9.
118 Id. (citing Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (“If seemingly innocuous information is part of a
classified 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 classified information.”)).
119 Husayn v. Mitchell, 938 F.3d 1123, 1138 (9th Cir. 2019).
120 Id. at 1131 (citing Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007)).
121 Id. at 1132 (quoting Al-Haramain, 507 F.3d at 1203).
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Although the majority agreed with the lower court that much of the information Abu Zubaydah
sought—including the identities and roles of foreign individuals involved with the detention
facility—was protected by state secrets privilege,122 it concluded that the district court’s effort to
disentangle privileged information from non-privileged information was insufficient.123 The
majority disputed the CIA director’s contention that absence of official confirmation is “the key
to preserving an ‘important element of doubt about the veracity of the information,’”124 arguing
that the statements of former contractors, who are not agents of the government, cannot serve as
official verification of anything.125 Moreover, the majority held that there was little danger in
exposing information that was already in the public realm.126 The majority also found it
significant that Polish investigators were indirectly seeking the information, undercutting the
director’s argument that the trust of foreign partners was at stake.127 Finally, the majority
emphasized “the importance of striking ‘an appropriate balance . . . between protecting national
security matters and preserving an open court system,’”128 opining that “[w]hile it is essential to
guard the courts from becoming conduits for undermining the executive branch’s control over
information related to national security, these concerns do not apply when the alleged state secret
is no secret at all, but rather a matter that is sensitive or embarrassing to the government.”129
The court remanded the case to the lower court with instructions to make an effort to disentangle
non-privileged information that could be subject to deposition.130 The majority emphasized the
limited nature of its holding, suggesting that the lower court might yet conclude that
disentanglement is impossible and quash the subpoena.131 The dissent argued that the court should
have provided greater deference to the CIA director.132
The Ninth Circuit denied rehearing en banc over the dissent of 12 judges.133 Three concurring
judges opined that rehearing was unnecessary given the narrowness of the panel decision, which
122 Id. at 1133.
123 Id. at 1136.
124 Id. at 1133.
125 Id.
126 Id. (agreeing with the district court and petitioners that “in order to be a ‘state secret,’ a fact must first be a
‘secret’”).
127 Id.
128 Id. (quoting Al-Haramain, 507 F.3d at 1203).
129 Id.
130 Id. at 1137.
131 Id. (“[I]f, upon reviewing disputed discovery and meaningfully engaging the panoply of tools at its disposal, the
district court determines that it is not possible to disentangle the privileged from nonprivileged, it may again conclude
that dismissal is appropriate at step three of the Reynolds analysis. However, the district court may not skip directly to
dismissal without doing more.”).
132 Id. at 1138 (Gould, C.J., dissenting).
133 Husayn v. Mitchell, 965 F.3d 775 (9th Cir. 2020). The dissent criticized the panel opinion based on its opinion that
The serious legal errors in the majority opinion, and the national security risks those errors portend,
qualified this case for en banc review. The majority opinion treats information that is core state
secrets material as fair game in discovery; it vitiates the state secrets privilege because of
information that is supposedly in the public domain; it fails to give deference to the CIA Director
on matters uniquely within his national security expertise; and it discounted the government’s valid
national security concerns because the discovery was only sought against government
contractors—even though these contractors were the architects of the CIA’s interrogation program
and discovery of them is effectively discovery of the government itself.
Id. at 785 (Bress, C.J., dissenting from denial of rehearing en banc).
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it characterized as enforcing the three-step Reynolds inquiry. The dissent also objected that the
district court’s efforts to disentangle non-privileged information in this context would be “fraught
with peril” and would themselves pose a risk to national security.134
In United States v. Abu Zubaydah, the government asked the Supreme Court to overturn the Ninth
Circuit decision.135 In the opening brief to the Court, the government urged the Court to find that
the Ninth Circuit should have deferred to the CIA director, who declared that any information the
contractors could provide would risk harm to U.S. national security, and should have quashed the
subpoena in its entirety.136 Specifically, the government’s brief focused on its objection to the
measure of deference the court below paid to the CIA’s declaration regarding the continued top
secret nature of the CIA’s involvement with foreign partners during its clandestine detention and
interrogation program.137 The government argued that the discovery statute for foreign
proceedings does not permit discovery in this context because information central to the foreign
proceeding is subject to a “legally applicable privilege.”138 In this context, the government
contended that the Reynolds test suggests that discovery of sensitive information destined for a
foreign tribunal should be denied based on a “facially plausible risk to the national security.”139
The government thus objected to the Ninth Circuit’s “skeptical” review based on its own
supposition about what is “public knowledge,”140 highlighting the difference between official and
nonofficial disclosures.141 Specifically, the government rejected the notion that former CIA
contractors are private parties not in a position to reveal state secrets142 and rebuffed the Ninth
Circuit’s underestimation of the importance of providing U.S. intelligence partners “with an
assurance of confidentiality that is as absolute as possible.”143
In response, Abu Zubaydah and his attorney characterized the government’s position as a demand
for blind deference from the judiciary whenever the government asserts the state secrets
privilege,144 in effect imposing a complete bar on cases in their entirety even when some nonprivileged information is sought.145 They argued that the Ninth Circuit properly applied the
Reynolds balancing test in this case146 and that the narrow question before the Supreme Court is
whether the district court may order Mitchell and Jessen to testify (as they have done twice
before) about nonprivileged information; or if, instead, the Government may prohibit
disclosure of even nonprivileged information by invoking the state secrets doctrine.147
134 Id. at 791.
135 United States v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, No. 20-827 (U.S.).
136 Brief for the United States, Abu Zubaydah, No. 20-827 (U.S. Jul. 2, 2021).
137 Brief for the United States at 22, United States v. Abu Zubaydah, No. 20-827 (U.S. Jul. 2, 2021).
138 Id. (citing 28 U.S.C. § 1782(a)).
139 Id. at 40.
140 Id. at 19-20.
141 Id. at 30 (“The state-secrets privilege ‘belongs to the Government’ alone and cannot be ‘waived by a private
party.’”) (citing Reynolds, 345 U.S. at 7).
142 Id. at 26.
143 Id. at 27.
144 Reply Brief of Respondents Abu Zubaydah and Joseph Margulies at 41, United States v. Abu Zubaydah, No. 20-827
(U.S. Aug. 13, 2021).
145 Id. at 46.
146 Id. at 45-46.
147 Id. at 2.
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Abu Zubaydah emphasized that the information sought through deposition is similar to
information the former contractors have already provided without the government’s invocation of
the state secrets privilege.148 They argued that Polish investigators already had sufficient
information to conclude that Abu Zubaydah was detained in Poland.149 In any event, they argued,
there is no danger of “official confirmation” because the witnesses are not agents of the
government.150 Disputing the government’s contention that the context of obtaining information
for a foreign tribunal requires enhanced deference,151 the respondents argued that Abu
Zubaydah’s inability to communicate with the outside world shows a strong necessity for the
testimony requiring more careful judicial review.152
The Supreme Court found in favor of the government and remanded the case with instructions to
dismiss the discovery request,153 apparently without prejudice,154 although there was not complete
consensus on the rationale.155 Justice Breyer, writing for a majority, characterized the issue as a
“narrow evidentiary dispute” predicated on the questions for which Abu Zubaydah had initially
sought depositions exactly as presented.156 The majority concluded that these questions, as
written, relied on or would inevitably lead to a conclusion that the mistreatment occurred in
Poland.157 The majority agreed with the government that the former CIA contractors were in a
position to confirm or deny secret evidence158 and agreed with the government’s contention that
such confirmation or denial would pose a threat to national security159 notwithstanding the fact
that relevant information was already in the public domain.160
148 Id. at 27.
149 Id. at 12 (citing the ECHR’s finding of “‘abundant and coherent circumstantial evidence’ leading to the
‘inevitab[le]’ conclusion that ‘Poland knew of the nature and purposes of the CIA’s activities on its territory at the
material time,’ and that ‘Poland cooperated in the preparation and execution of the CIA rendition, secret detention and
interrogation operations on its territory’”) (quoting Judgment in Husayn (Abu Zubaydah) v. Poland, No. 7511/13,
European Court of Human Rights, at 567, ¶444).
150 Id. at 37.
151 Id. at 40-41.
152 Id. at 39-40.
153 United States v. Husayn (Abu Zubaydah), 142 S. Ct. 959 (2022).
154 Id. at 972 (plurality opinion) (“[W]e need not and do not here decide whether a different discovery request filed by
Zubaydah might avoid the problems that preclude further litigation regarding the requests at issue here.”); id. at 972
(majority) (“We reverse the judgment of the Ninth Circuit and remand the case with instructions to dismiss Zubaydah’s
current application.) (emphasis added).
155 Although five justices agreed that the government had made a sufficient case that the identity of cooperating foreign
intelligence services is properly subject to the state secrets doctrine, one justice (Justice Kagan) disagreed with the
result of dismissal and would have remanded the case to the district court, id.at 983 (Kagan, J., concurring in part and
dissenting in part). Two justices (Justices Kavanaugh and Barrett) joined in a partial concurrence that suggested an
alternate interpretation of Reynolds, id. at 982-83 (Kavanaugh, J. concurring in part) (setting forth understanding of the
Reynolds process but emphasizing deference to the executive branch). Two justices (Justices Thomas and Alito) agreed
with the majority’s decision to dismiss the discovery request, but disagreed with the rationale and concurred in the
result, id. at 973 (Thomas, J., concurring in part and concurring in the judgment). Two justices (Justices Gorsuch and
Sotomayor) dissented, id. at 985 (Gorsuch, J., dissenting).
156 Id. at 967-68.
157 Id. at 968.
158 Id. at 970-71 (“Given [these CIA contractors’] central role in the relevant events, we believe that their confirmation
(or denial) of the information Zubaydah seeks would be tantamount to a disclosure from the CIA itself.”).
159 Id. at 968-69 (quoting CIA director’s assertion that “confirm[ing] the existence of . . . a [clandestine] relationship
[with a foreign intelligence service] would ‘breach’ the [mutual] trust and have ‘serious negative consequences,’
including jeopardizing ‘relationships with other foreign intelligence or security services’”).
160 Id. at 969 (“Confirmation by . . . an insider is different in kind from speculation in the press or even by foreign
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Having confirmed that information pointing to Poland as one site where Abu Zubaydah was
tortured was subject to the state secrets doctrine, a majority considered Abu Zubaydah’s need for
the depositions.161 The majority interpreted Abu Zubaydah’s argument that he did not necessarily
need to elicit evidence establishing the location of the detention site as a concession that his need
for the depositions was relatively insignificant.162 By emphasizing the narrow nature of the
decision, the majority avoided making broad pronouncements regarding the level of deference
courts owe the executive branch in evaluating assertions of the state secrets privilege or defining
circumstances where a court might find it appropriate to examine evidence to disentangle
privileged information from information that can safely be disclosed.
Justice Thomas, joined by Justice Alito, filed an opinion disagreeing with respect to most of the
opinion, but joined the opinion remanding the case and dismissing the discovery request.163
Justice Thomas would have begun the inquiry with an evaluation of “the showing of necessity . . .
made” by Abu Zubaydah and only then if necessary ask whether there is a “reasonable danger”
that “military secrets are at stake.”164 Declaring Abu Zubaydah to be a terrorist,165 Justice Thomas
emphasized that Abu Zubaydah “does not request this discovery for his own use. . . [but rather
because] Polish prosecutors asked Zubaydah to file a discovery application after the United States
repeatedly declined the prosecutors’ requests for information regarding CIA operations at an
alleged detention site in Poland.”166 He argued the majority’s application of the Reynolds test, by
evaluating the government’s claim of privilege first, “undermines the ‘utmost deference’ owed to
the Executive’s national-security judgments.”167
Justice Thomas’s evaluation of Abu Zubaydah’s need for the depositions concluded that there
were three reasons Abu Zubaydah “failed to prove any nontrivial need for his requested
discovery.”168 First, he argued the depositions would not provide Abu Zubaydah with meaningful
relief because they would amount to “discovery on behalf of foreign authorities to help them
prosecute foreign nationals who allegedly committed crimes in a foreign country.”169 Second, he
argued Abu Zubaydah has “failed to pursue ‘an available alternative’” by not asking to submit a
statement himself to the Polish prosecutors.170 Third, he argued that Abu Zubaydah clarified that
he did not “need evidence about Poland specifically and seeks discovery only regarding the
conditions of his confinement while in CIA custody.”171 Accordingly, he argued that Abu
Zubaydah’s “dubious showing of necessity” alone required dismissal of the suit.172
Justice Kagan filed an opinion concurring in part and dissenting in part, agreeing that the
government has a substantial interest in maintaining secrecy regarding the location where Abu
courts because it leaves virtually no doubt as to the veracity of the information that has been confirmed.”).
161 Id. at 971.
162 Id.
163 Id. at 973 (Thomas, J., concurring in part and concurring in the judgment).
164 Id. (citing Reynolds, 345 U.S. at 10).
165 Id. at 974.
166 Id. at 974-75.
167 Id. at 977 (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)).
168 Id. at 981.
169 Id.
170 Id.
171 Id. at 982.
172 Id.
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Zubaydah was held in order to protect relationships with foreign intelligence partners173 but
would have permitted Abu Zubaydah to rephrase his deposition questions to avoid implicating
Poland. Justice Kagan would have permitted the district court to segregate “classified information
about location while giving Zubaydah access to unclassified information about detention
conditions and interrogation methods.”174
Justice Gorsuch, joined by Justice Sotomayor, dissented, writing:
There comes a point where we should not be ignorant as judges of what we know to be true
as citizens. This case takes us well past that point. Zubaydah seeks information about his
torture at the hands of the CIA. The events in question took place two decades ago. They
have long been declassified. Official reports have been published, books written, and
movies made about them. Still, the government seeks to have this suit dismissed on the
ground it implicates a state secret—and today the Court acquiesces in that request. Ending
this suit may shield the government from some further modest measure of embarrassment.
But respectfully, we should not pretend it will safeguard any secret.175
Justice Gorsuch first set forth what is already known about Abu Zubaydah’s treatment176 but
argued that this information is missing relevant facts regarding Abu Zubaydah’s treatment during
the time he was allegedly detained in Poland.177 He observed that Abu Zubaydah seeks that
information pursuant to statute “for use in a proceeding in a foreign or international tribunal,
including criminal investigations conducted before formal accusation,”178 and had sought an
accommodation at the district court to avoid mentioning the location of the mistreatment.179
Arguing that the breadth of the initial deposition request is now “beside the point,”180 Justice
Gorsuch contended that information helpful to Abu Zubaydah could be elicited using code words
and other familiar mechanisms to protect classified information.181
Justice Gorsuch argued that accommodating both the government’s and Abu Zubaydah’s needs
would not interfere in the constitutional separation of powers.182 Setting forth evidence of
possible misuse of the state secrets doctrine in the past,183 Justice Gorsuch wrote that the Court
need not “add fuel to that fire by abdicating any pretense of an independent judicial inquiry into
the propriety of a claim of privilege and extending instead ‘utmost deference’ to the Executive’s
mere assertion of one.”184
173 Id. at 983 (Kagan, J. concurring in part and dissenting in part).
174 Id.
175 Id. at 985 (Gorsuch, J., dissenting) (internal citations omitted).
176 Id. at 985-87 (discussing Senate Select Committee on Intelligence report executive summary and other public
information).
177 Id. at 987-88.
178 Id. at 988 (citing 28 U.S.C. § 1782).
179 Id.
180 Id. at 989.
181 Id. at 990 (“What worked before, the government submits, cannot work again. Unlike previous lawsuits, this one
alone must be dismissed at its outset.”).
182 Id. at 991 (“[W]hen the Executive seeks to withhold every man’s evidence from a judicial proceeding thanks to the
powers it enjoys under Article II, that claim must be carefully assessed against the competing powers Articles I and III
have vested in Congress and the Judiciary.”).
183 Id. at 991-94.
184 Id. at 994.
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Framing the Reynolds test as one that both “guarantees a degree of independent judicial review
[and] seeks to respect the Executive’s specially assigned constitutional responsibilities in the field
of foreign affairs,” Justice Gorsuch explained his view that courts should “often [review] the
evidence supporting the government’s claim of privilege in camera.”185 He observed that “the
state secrets privilege protects the government from the duty to supply certain evidence, but it
does not prevent a litigant from insisting that the government produce nonprivileged evidence in
its possession.”186 Charging the majority with accepting the government’s conclusory assertions
with respect to the dangers of revealing such information, Justice Gorsuch asserted that the Court
had shifted the burden of proof to Abu Zubaydah to prove the opposite.187 The government, he
wrote, “has not carried its burden of showing” that this case, if allowed to continue, would
endanger relationships with foreign intelligence partners.188
Even assuming that disclosure of the detention site would expose state secrets, Justice Gorsuch
argued that the majority’s worry that deposing the CIA interrogators might lead them to
“inadvertently disclose the location of their activities” was insufficient to justify dismissing the
entire case, given the tools available to avoid such an outcome.189 In the end, Justice Gorsuch saw
no reason to force Abu Zubaydah to file a new lawsuit to get the depositions he needs,190 and he
charged that the only real reason for the government to have this case dismissed in its entirety is
to “impede the Polish criminal investigation and avoid (or at least delay) further embarrassment
for past misdeeds.”191
Other Examples of the State Secrets Privilege
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.
Electronic Surveillance
The state secrets privilege has played a large role in litigation arising from the Terrorist
Surveillance Program (TSP). The TSP was a program, established during the George W. Bush
Administration, that authorized the NSA to intercept various communications involving U.S.
persons within the United States without first obtaining warrants under FISA.192 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 provided the NSA with
telephone communication records, while others were filed against the NSA itself and individual
government officials.193 Given the sensitive nature of NSA’s surveillance activities, the federal
185 Id.
186 Id. at 995.
187 Id. at 997.
188 Id.
189 Id. at 998-99.
190 Id. at 1001.
191 Id.
192 See, CRS Report R44457, Surveillance of Foreigners Outside the United States Under Section 702 of the Foreign
Intelligence Surveillance Act (FISA), by Edward C. Liu.
193 Compare, Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Ca. 2006), with Al-Haramain Islamic Foundation,
Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006).
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government intervened in a majority of these cases filed against telecommunications companies,
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.194 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.”195 The court explained that because of the broad public
disclosures by AT&T and the government relating to the TSP, it could not conclude “that merely
maintaining this action create[d] a ‘reasonable danger’ of harming national security.”196 The court
declined to “defer to a blanket assertion of secrecy.”197
In 2008, Congress passed the FISA Amendments Act (FAA),198 which granted the
telecommunications companies retroactive immunity for assistance provided to NSA under the
TSP.199 Accordingly, federal courts have dismissed most of the TSP-related claims filed against
telecommunications companies pursuant to the protections provided in the FAA.200
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.201 AlHaramain involves a claim by a Muslim charity—designated as a terrorist organization by the
United Nations—alleging that the NSA violated statutory, constitutional, and international law by
intercepting communications through the TSP and providing those records to the Office of
Foreign Assets Control (OFAC) of the Department of the Treasury, which subsequently froze AlHaramain’s assets.202 Whereas other plaintiffs had struggled to obtain standing to challenge the
TSP,203 OFAC had inadvertently provided the Al-Haramain Islamic Foundation with a classified
“top secret” document during the proceedings to freeze the organization’s assets that allegedly
proved that the foundation had been subject to NSA surveillance.204 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.205 The district court denied the government’s motion to dismiss,
holding that although the state secrets privilege was validly invoked and protected certain
documents, the privilege did not require dismissal of the suit in its entirety.206 Al-Haramain had
also argued that the state secrets privilege was preempted by statutory provisions of FISA
194 439 F. Supp. 2d 974, 980 (N.D. Ca. 2006).
195 Id. at 994.
196 Id.
197 Id. at 995.
198 P.L. 110-261 (110th Cong.) (2008).
199 Under the FAA, a claim may not be maintained against a party for “providing assistance to an element of the
intelligence community, and shall be promptly 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.
200 See, e.g., In re Nat’l Sec. Agency Telecomm. Records Litig., 671 F.3d 881, 893-94 (9th Cir. 2011).
201 507 F.3d 1190 (9th Cir. 2007).
202 Id. at 1193-1195.
203 See, e.g., ACLU v. NSA, 93 F.3d 644 (6th Cir. 2007) (dismissing plaintiffs challenge to the TSP for lack of
standing).
204 Al-Haramain Islamic Foundation Inc. v. Bush, 507 F.3d 1190, 1193 (9th Cir. 2007).
205 Id. at 1195.
206 Al-Haramain Islamic Foundation Inc. v. Bush, 451 F. Supp. 2d 1215, 1221-27 (D. Or. 2006).
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establishing procedures for a court to review FISA materials in camera, but the district court
declined to rule on this question.207
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
disclosed to Al-Haramain.208 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.”209 Thus, the court held that dismissal under the state secrets privilege at such an
“early stage” was not warranted.210 The court further concluded, after in camera review of the top
secret document, that “disclosure of information concerning the [secret document] … would
undermine the government’s intelligence capabilities and compromise national security.”211
Therefore, the court held that the document itself was protected by the privilege and unavailable
to the plaintiffs.212
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.213 In short, the court determined that,
without the secret document, Al-Haramain could not prove that it had actually been a subject of
TSP surveillance. The court therefore dismissed the claim for lack of standing.214 Procedurally,
this dismissal meant that the question of whether FISA preempted the state secrets privilege was
now central to Al-Haramain’s ability to proceed with its suit, and the Ninth Circuit remanded the
case to the district court to address that issue.215 Although the district court subsequently held that
FISA did preempt the state secrets privilege,216 the suit was ultimately dismissed after the Ninth
Circuit held that the government had not waived sovereign immunity and vacated the district
court’s decision.217
Government Contractors
The United States commonly intervenes in civil claims brought against government contractors,
especially military contractors, in order to protect state secrets.218 For example, the federal
207 Id. at 1231.
208 Al-Haramain Islamic Foundation Inc., 507 F.3d 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.”).
209 Id. at 1198.
210 Id.
211 Id. at 1204.
212 Id. at 1204.
213 Id. at 1205.
214 Id. at 1205.
215 Id. at 1205-06.
216 In re Nat’l Sec. Agency Telecomm. Records Litig., 564 F. Supp. 2d 1109, 1124 (N.D. Cal. 2008).
217 Al-Haramain Islamic Foundation, Inc. v. Obama, 705 F.3d 845, 855 (9th Cir. 2012).
218 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
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government intervened and asserted the state secrets 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 and 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.219 During
discovery, the United States intervened to assert the state secrets privilege through a declaration
filed by the Secretary of the Army.220 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.221 The Secretary also provided the court with a classified supplemental declaration that
further elaborated on the impact of disclosing information specific to the case.222 After the district
court judge’s in camera review of the supplemental declaration, the judge held that, although the
plaintiff could potentially make out a prima facie case absent the privileged information, there
was “no practical means by which Raytheon could be permitted to mount a fair defense without
revealing state secrets.”223 The court thus concluded that it had “no alternative but to order the
case dismissed.”224
The Supreme Court case General Dynamic Corporation v. United States involved government
contractors and the invocation of the state secrets privilege by the federal government.225 This
case combined two lower court cases and centered around a contract entered into in 1988 to
design and build a new stealth capable, carrier-based A-12 Avenger.226 By 1990, General
Dynamics and McDonnell Douglas had fallen behind in the project and had missed required
deadlines, which resulted in the Navy terminating the contract in 1991.227 As a result of the
default termination, the Navy demanded that the contractors return $1.35 billion in progress
payments.228 Although the Navy terminated the contract, it was the contractors who initiated
litigation under the Contract Disputes Act.229 Filing with the U.S. Court of Federal Claims, the
contractors 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.230
One of the contractors’ chief arguments was that by not providing the companies access to its
existing stealth technology, as it had allegedly promised,231 the Navy had breached its duty to
be considered government contractor cases.
219 White v. Raytheon Co., No. 07-10222, 2008 WL 5273290, *1 (D. Ma. Dec. 17, 2008).
220 Id. at *1.
221 Id. at *1-2.
222 Id. at *5.
223 Id.
224 Id.
225 Gen. Dynamics Corp. v. United States, 563 U.S. 478 (2011).
226 Id. at 480-81.
227 See, McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009).
228 McDonnell Douglas Corp. v. U.S., 323 F.3d 1006, 1011 (Fed. Cir. 2003).
229 41 U.S.C. § 609(a).
230 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.
231 Petition for Certiorari, Nos. 091298 and 09-1302 (U.S. filed April 23, 2010) at 2.
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“disclose critical information to a contractor that [was] necessary to prevent the contractor from
unknowingly pursuing a ruinous course of action.”232 By withholding its “superior knowledge” of
stealth technology, the contractors asserted that it was the Navy that had caused the default.233
The Navy maintained that the contract was terminated due to default by the contractors.234
The federal government also 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.”235 Ultimately, after a series of decisions by the
U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) ruling for and against the federal government, the Federal Circuit determined that the
federal government had properly terminated the contract for default.236
The Supreme Court vacated the Federal Circuit’s decision and remanded proceedings.237 The
Court granted the petition for writ of certiorari to consider “what remedy is proper when, to
protect state secrets, a court dismisses a Government contractor’s prima facie valid affirmative
defense to the Government’s allegations of contractual breach.”238 In its opinion, the Court first
distinguished General Dynamics from Reynolds, which it noted “was about the admission of
evidence.”239 In contrast, the Court explained that “the state-secrets issue [in General Dynamics]
raises something quite different from a mere evidentiary point.”240 Specifically, the Court held
that, like in Totten and Tenet, “[e]very document request or question to a witness would risk
further disclosure, since both sides have an incentive to probe up to the boundaries of state
secrets. State secrets can also be indirectly disclosed. Each assertion of the privilege can provide
another clue about the Government's covert programs or capabilities.”241 Therefore, the Court
held that “[w]here liability depends upon the validity of a plausible superior-knowledge defense,
and when full litigation of that defense would inevitably lead to the disclosure of’ state secrets,
neither party can obtain judicial relief.”242 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 invoking the privilege in the
context of this case, rather than an examination of whether invoking the privilege was proper.243
In crafting a remedy in this case, the Court held, as it did in Totten and Tenet, that following the
government’s invocation of state secret privilege, the parties must be left “where they stood when
they knocked on the courthouse door.”244 Thus, the government could not claim the $1.35 billion
in progress payments, and the contractor could not pursue its claim for damages under the theory
that “superior knowledge” was withheld.245 The Court, in an attempt to limit the future
232 McDonnell Douglas Corp. v. U.S., 323 F.3d 1006 (Fed Cir. 2003).
233 See id. at 1011-12, 1018-21.
234 Id. at 1015.
235 McDonnell Douglas Corp. v. U.S., 182 F.3d 1319 (Fed. Cir. 1999).
236 See, McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009).
237 General Dynamics Corp. v. U.S., 563 U.S. 478 (2011).
238 Id. at 480.
239 General Dynamics, 563 U.S. at 485.
240 Id.
241 Id. at 487.
242 Id. at 486.
243 Id.at 487-88.
244 Id. at 487.
245 Id. at 488-91. The Court admitted, “Neither side will be entirely happy with the resolution we reach today.” Id. at
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application of its opinion in the state secrets context, declared that its decision “clarifie[d] the
consequences of [the privilege’s] use only where it precludes a valid defense in Governmentcontracting 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.”246
Employment Cases
The state secrets privilege also arises in employment-related claims against national security
agencies.247 The federal government has generally argued that these cases threatened to disclose
“intelligence-gathering methods or capabilities, and disruption of diplomatic relations with
foreign governments.”248 Sterling v. Tenet, for example, involved a racial discrimination claim
brought against the director of the CIA.249 Jeffrey Sterling, a CIA operations officer, alleged that
he was subject to unlawful discriminatory practices during his employment at the CIA in violation
of Title VII of the Civil Rights Act.250 In response, the CIA invoked the state secrets privilege and
asked the district court to dismiss the case, relying on an unclassified and a classified declaration
submitted by then-CIA Director George Tenet that alleged 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.”251 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.”252
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.”253 In dismissing the claim, the Fourth Circuit 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.”254
The Fourth Circuit echoed its Sterling decision in Abilt v. CIA, affirming the dismissal of a
lawsuit alleging disability discrimination by the CIA.255 Jacob E. Abilt, a covert CIA employee,
brought an action in district court based on Title VII and the Rehabilitation Act,256 claiming that
489.
246 Id. at 492.
247 See, e.g., Jane Doe v. CIA, 576 F.3d 95 (2d Cir. 2009); Edmonds v. DOJ, 323 F. Supp. 2d 65 (D.D.C. 2004).
248 Sterling v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005).
249 Id.
250 Id. at 341.
251 Id. at 345-46.
252 Id. at 342.
253 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.
254 Id. at 347. Sterling was subsequently indicted and convicted for unauthorized disclosure of national defense
information. See, Former CIA Officer Sentenced to 42 Months in Prison for Leaking Classified Information and
Obstruction of Justice, May 11, 2015. Available at https://www.justice.gov/opa/pr/former-cia-officer-sentenced-42months-prison-leaking-classified-information-and-obstruction.
255 See Abilt v. Central Intelligence Agency, 848 F.3d 305, 316-17 (4th Cir. 2017).
256 Rehabilitation Act of 1973, P.L. 93-112, 87 Stat. 355 (codified as amended at 29 U.S.C. §§791-94g (2018)).
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the CIA discriminated against him by denying him opportunities to serve abroad and in a war
zone due to his narcolepsy.257 He also alleged that the CIA failed to accommodate his disability
and retaliated against him for filing an administrative complaint alleging discrimination.258 The
government moved to dismiss and submitted in support a declaration from then-CIA Director
John O. Brennan that asserted the state secrets privilege with respect to information concerning
specific CIA programs and activities on which Abilt worked and information concerning the
CIA’s employment of Abilt, his coworkers, and his supervisors.259 The district court granted the
government’s motion and dismissed the case.260
On appeal, the Fourth Circuit explained the three-step analysis it applies to resolve a claim of
state secrets privilege.261 The court must first ascertain whether the procedural requirements under
Reynolds were met.262 Next, the court must determine whether the information for which the
privilege is sought in fact qualifies for it.263 Finally, if the first two steps are answered
affirmatively, the court must decide how the matter should proceed in light of the successful
privilege claim.264
Citing a prior Fourth Circuit decision that had held that the state secrets privilege “performs a
function of constitutional significance,”265 the court explained that the executive branch’s
determination regarding the threat to national security posed by the possible disclosure of
information is entitled to the “utmost deference.”266 The court also explained that each invocation
of the privilege must be critically examined “to ensure that the state secrets privilege is asserted
no more frequently and sweepingly than necessary.”267 This examination must nevertheless be
conducted in such a way that does not “forc[e] a disclosure of the very thing the privilege is
designed to protect.”268 Moreover, the court does not take into consideration the plaintiff’s need
for the information in order to make his case.269 Rather, the court considers whether the “sum and
substance” of the case involves state secrets, in which case dismissal inevitably follows.270
The court identified three circumstances in which the privileged information is central to the case
that dismissal is required:
First, dismissal is required if the plaintiff cannot prove the prima facie elements of his or
her claim without privileged evidence. Second, even if the plaintiff can prove a prima facie
257 Abilt, 848 F.3d at 309-10.
258 Id.
259 Abilt v. Central Intelligence Agency, No. 14-CV-01626, 2015 WL 12765992, at *6 (E.D. Va. 2015).
260 Id. at *13.
261 Abilt, 848 F.3d at 311 (citing El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007)).
262 Id.
263 Id.
264 Id.
265 Id. at 312 (explaining that the privilege “allows the executive branch to protect information whose secrecy is
necessary to its military and foreign-affairs responsibilities”) (citing El-Masri, 479 F.3d at 303). The El-Masri decision
is discussed in more detail below at “Extraordinary Rendition.”
266 Id. (citing United States v. Nixon, 418 U.S. 683, 710 (1974)).
267 Id. (citing Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983)).
268 Id. at 313 (citing Reynolds, 345 U.S. at 7-8).
269 Id. (“[N]o attempt is made to balance the need for secrecy of the privileged information against a party’s need for
the information’s disclosure; a court’s determination that a piece of evidence is a privileged state secret removes it from
the proceedings entirely.”) (citing El-Masri, 479 F.3d at 306).
270 Id. (citing Sterling, 416 F.3d at 347).
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case without resort to privileged information, the case should be dismissed if “the
defendants could not properly defend themselves without using privileged evidence.”
Finally, dismissal is appropriate where further litigation would present an unjustifiable risk
of disclosure.271
Applying these principles, the court agreed with the district court that the CIA director had
properly invoked the privilege and found there to be little doubt that the information he certified
as requiring protection met the “reasonable danger” standard established by Reynolds.272 Turning
to its analysis of how the litigation should proceed in light of the information placed off limits by
the privilege, the court determined that the circumstances called for dismissal because the CIA
would be unable to defend its actions as proper without the use of the privileged information.273
The court explained that
even if the CIA could, as Abilt suggests, proffer a legitimate nondiscriminatory reason for
its actions without resort to privileged information, in properly litigating that reason, Abilt
would be entitled to probe deeper into the CIA’s justifications “through cross-examination
of the [CIA]’s witnesses.” In doing so, Abilt “would have every incentive to probe as close
to the core secrets as the trial judge would permit.” “Such probing . . . would so threaten
disclosure of state secrets that the overriding interest of the United States and the
preservation of its state secrets precludes any further attempt to pursue this litigation.”274
Acknowledging the unfairness of the resulting dismissal to the plaintiff, the court found the
“fundamental principle of access to court must bow to the fact that a nation without sound
intelligence is a nation at risk.”275
In Doe v. CIA, the U.S. Court of Appeals for the Second Circuit (Second Circuit) addressed a
constitutional challenge to the actions that the CIA took to invoke the state secrets privilege and
move for dismissal of a case,276 which the plaintiff argued effectively denied her access to the
courts.277 Specifically, the plaintiff (who was the wife of a former CIA employee who remained in
covert status), argued that the CIA denied her counsel access to secure communications and
facilities to enable the preparation of an opposition to the CIA’s motion to dismiss in violation of
her constitutional rights under the First Amendment.278 The Second Circuit disagreed, citing
Reynolds for the proposition that “plaintiffs have no right of access to material that the
government contends contains state secrets prior to the district court’s adjudication of that
contention.”279 Furthermore, the court found that even though the plaintiff already knew some of
the information for which the CIA sought to invoke the state secrets privilege, she did not have
the right to use it to oppose that invocation in the district court.280 To permit plaintiffs to use the
information to oppose the assertion of privilege, according to the court, “may present a danger of
‘[i]nadvertent disclosure’—through a leak, for example, or through a failure or mis-use of the
secure media that plaintiffs’ counsel seeks to use, or even through over-disclosure to the district
271 Id. at 314 (internal citations and quotations omitted).
272 Id.
273 Id. at 315-16.
274 Id. at 317 (citations omitted).
275 Id. at 317-18 (citing Sterling, 416 F.3d at 348).
276 Doe v. Central Intelligence Agency, 576 F.3d 95, 101 (2d Cir. 2009).
277 Id. at 105. The plaintiff did not dispute that the state secrets privilege had been properly invoked or applied. Id.
278 Id.
279 Id. at 106 (citing Reynolds, 345 U.S. at 8).
280 Id.
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court in camera—which is precisely ‘the sort of risk that Reynolds attempts to avoid.’”281
Consequently, the court held that the challenge failed on the merits.
In Roule v. Petraeus, a former covert CIA employee brought a Title VII action against the CIA
alleging discrimination based on the race and national origin of his wife, which he claimed
resulted in the denial of work opportunities and advancement.282 The government moved to stay
the case while internal deliberations regarding whether to invoke the state secrets privilege were
underway and objected to providing discovery with respect to information that “may be” covered
by the privilege.283
In support of its motion to stay the proceedings, the government cited the multi-level Department
of Justice (DOJ) procedures it follows before claiming the state secrets privilege in court.284
According to the procedures, the DOJ invokes the state secrets privilege “only to the extent
necessary to protect against the risk of significant harm to national security” and “will not defend
an invocation of the privilege to conceal violations of the law, prevent embarrassment to any
person, organization, or agency of the United States government, restrain competition, or prevent
or delay the release of information that would not reasonably be expected to cause significant
harm to national security.”285 The plaintiff argued that any more delay in the case while these
procedures advanced would harm his ability to make his case due to the increasing possibility that
witnesses would become unavailable or their memories would fade.286 The government also
challenged the plaintiff’s discovery request, asserting that classified information is not
discoverable in civil cases and that such discovery would pose a risk of harm.287 The judge agreed
with the plaintiff, finding that discovery could continue with protective procedures designed to
prevent disclosures, for example, by “redacting classified facts or replacing the names of covert
employees with pseudonyms.”288 The judge characterized the government’s approach as “ask[ing]
the court to trust the process blindly without any further information[,]” which she found to be
“inconsistent with the court’s obligation to critically examine instances of the government’s
invocation of the state secrets privilege.”289 The court declined to order the stay based on the
record then before it, finding “the possibility that the government ‘may’” invoke the privilege
insufficient to stay the case or discovery.290 Accordingly, where the government has not formally
invoked the state secrets privilege under Reynolds, it may be possible for litigation to advance
using protecting measures.
281 Id. (citing Sterling, 416 F.3d at 348).
282 Roule v. Petraeus, No. 10-04632, 2012 WL 2367873, at *1 (N.D. Cal. 2012).
283 Id.
284 Id. at *3. The procedures are available at http://www.justice.gov/sites/default/files/opa/legacy/2009/09/23/state-
secret-privileges.pdf.
285 Roule, at *3.
286 Id. at *4-5.
287 Id. at *5.
288 Id.
289 Id. at *6 (citing Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983); Mohamed v. Jeppesen Dataplan, Inc., 614
F.3d 1070, 1080 (9th Cir. 2010) (en banc ), cert. denied, 563 U.S. 1002 (2011)).
290 Id. at *1.
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Targeted Killing
In Al-Aulaqi v. Obama, the father of a U.S.-born Yemeni cleric and Specially Designated Global
Terrorist291 brought a claim against the federal government challenging his son’s alleged inclusion
on a so-called CIA target kill list.292 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, thus in
violation of the Fourth and Fifth Amendments of the U.S. Constitution.293 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 “specific categories of
information properly protected against disclosure by the privilege would be necessary to litigate
each of plaintiff’s claims.”294
In support of the government’s claim of privilege, the Director of National Intelligence, the
director of the CIA, 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.”295 Specifically, the government 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.”296 In addition to the public
declarations, the government also provided the court with supplemental confidential declarations
for in camera review.297
The district court ultimately dismissed the case without reaching the state secrets privilege claim,
finding that the plaintiff lacked standing and that his claims were non-justiciable under the
political question doctrine.298 The court seemed to imply that dismissal would have been
warranted under the privilege, noting in dicta 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.”299
Terrorist Screening Database
The state secrets privilege has also arisen in claims associated with the Terrorist Screening
Database (TSDB). For example, in Rahman v. Chertoff, a federal district court rejected the
government’s claim of privilege.300 Rahman involved a claim by a class of plaintiffs for wrongful
291 727 F. Supp. 2d 1 (D.D.C. 2010). The government alleges that Al-Aulaqi has significant ties to terrorist groups. Id.
at 10.
292 Id. at 11.
293 Id. at 11-12. The plaintiff also brought “a statutory claim under the Alien Tort Statute . . . alleging that the United
States’[] ‘policy of targeted killings violates treaty and customary international law.’” Id. at 12.
294 Id. at 53.
295 See, Declaration in Support Formal Claim of State Secrets Privilege, James R. Clapper, Director of National
Intelligence, Al-Aulaqi v. Obama, No. 10-cv-1469 (D.D.C. 2010).
296 Al-Aulaqi, 727 F. Supp. 2d at 53.
297 Id. at 53, n.15.
298 Id. at 54.
299 Id.
300 Rahman v. Chertoff, No. 05 C 3761, 2008 U.S. Dist. LEXIS 32356 (N.D. Ill. Apr. 16, 2008).
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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.301 Citing national security concerns, the
federal government asserted the state secrets privilege with respect to any information “tending to
confirm or deny whether the plaintiffs are now or ever have been listed in the TSDB.”302 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.”303
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.304 In
reaching its decision, the court determined that the plaintiffs had made a strong showing of
necessity to obtain the information and that the defendants had “failed to establish that, under all
the circumstances of this case, disclosure of that information would create a reasonable danger of
jeopardizing national security.”305 The court noted that the government had raised only “general
concerns” and declined to accept the government’s assertion that knowledge of one’s TSDB
status would allow one to alter their activity so as to avoid surveillance.306 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] plaintiffs for the first time
that they have been under government scrutiny.”307
Extraordinary Rendition
Two cases from the Fourth Circuit and 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.”308 The first case, 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.309 El-Masri, a German citizen, alleged he had been detained in
301 Id. at *4.
302 Id. at *17.
303 Id. at *23. The government also argued that disclosure of the requested information could “reveal sources and
methods” of gathering intelligence. Id. at *24.
304 Id. at *33-34. The government had also asserted the privilege with respect to the disclosure of the contents of FBI
investigative files, and agency policy and procedure documents. The court determined that much of the FBI files were
protected but that the court would require in camera review to separate protected information from responsive, nonprotected information. Id. at *41-42. The court held that the policy and procedure documents were fully protected. Id.
at *42-47.
305 Id. at *34.
306 Id. at *25.
307 Id. at *26.
308 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010).
309 El-Masri v. U.S., 479 F.3d 296, 299 (4th Cir. 2007).
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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.310 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.”311
The second case, Mohamed v. Jeppesen Dataplan, Inc., involved a claim by five plaintiffs against
Jeppesen Dataplan, Inc. for violations of the Alien Tort Statute stemming from the company’s
role in providing transportation services for the extraordinary rendition program.312 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.”313 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.314
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.”315 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
disclosure of privileged information.”316 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 transportation
companies.317 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.318 The Supreme Court
declined to review the El-Masri decision.319
In reaching its decision, the Fourth Circuit emphasized the notion that while the privilege had
been developed as a common law evidentiary privilege, the state secrets privilege performs a
“function of constitutional significance.”320 The Fourth Circuit opinion contains express language
310 Id. at 300.
311 Id.
312 Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).
313 Id. at 951.
314 El-Masri, 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).
315 El-Masri, 479 F.3d at 306.
316 Id.
317 Id. at 309.
318 Id. at 311.
319 552 U.S. 947 (2007).
320 Id. at 303 (explaining that Reynolds allowed the Court “to avoid the constitutional conflict that might have arisen
had the judiciary demanded the Executive disclose highly sensitive military secrets,” and that the Court in United States
v. Nixon “articulated the [state secrets] doctrine’s constitutional dimension, observing that the state secrets privilege
provides exceptionally strong protection because it concerns ‘areas of Art. II duties’”) (citations omitted).
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asserting that the state secrets privilege “has a firm foundation in the Constitution, in addition to
its basis in the common law of evidence.”321
In contrast, the Ninth Circuit in Mohamed v. Jeppesen Dataplan, Inc. initially held that the state
secrets privilege excluded privileged evidence only from discovery or admission at trial and did
not require the dismissal of the complaint at the pleadings stage.322 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.”323 The opinion distinguished between the Reynolds
privilege and the Totten bar, recognizing that dismissal under the Reynolds privilege was proper
only when the privileged evidence prevented the plaintiff from establishing a prima facie case or
the defendant from establishing a valid defense.324 “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.”325 Limiting Totten
to its facts, the Ninth Circuit refused to countenance any expansion of “Totten’s uncompromising
dismissal rule beyond secret agreements with the government.”326
The Ninth Circuit in an en banc decision reversed its prior ruling.327 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.”328
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.”329 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.”330 The Supreme Court declined to review the
case.331
9/11 Litigation
The government has used the state secrets doctrine to claim that certain information pertaining to
FBI investigations is privileged and thus not subject to discovery in a lawsuit by 9/11 victims
against Saudi Arabia and certain of its charities and officials for their alleged involvement or
321 Id. at 304.
322 Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).
323 Id. at 952.
324 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.”).
325 Id. at 954.
326 Id.
327 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1087 (9th Cir. 2010).
328 Id. at 1084, 1087.
329 Id. at 1083, 1089.
330 Id. at 1079.
331 563 U.S. 1002 (2011).
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support of the 9/11 attacks.332 In 2020, then-Attorney General William Barr filed a declaration
with the court asserting the privilege with respect to FBI information that (1) “would indicate that
a particular individual or entity is or was the subject of a national security investigation,” (2)
“would reveal the reasons a particular individual or entity is or was the subject of a national
security investigation and information obtained as a result of that investigation,” (3) “would
reveal sensitive sources and methods used in a national security investigation,” and (4) is
“received from a foreign government with the understanding that it and the nature of the
information sharing and cooperation between the FBI and foreign partners in a national security
investigation will remain confidential.”333
Plaintiffs urged the magistrate judge to reject the assertion of the privilege on the grounds that it
had not been timely filed and they did not believe the Attorney General had personally reviewed
the information sought to be withheld.334 The magistrate judge found no requirement for the
government to assert any privilege prior to the plaintiffs’ submission of a motion to compel.335
The judge also accepted at face value the Attorney General’s declaration that the assertion was
based on his review of relevant information and found it to be supported by the detailed classified
declaration of a subordinate.336 Recognizing that the plaintiffs were not in a position to review the
classified information themselves to rebut the decision, the judge stated, “In camera examination
‘is necessarily conducted without benefit of criticism and illumination by a party with the actual
interest in forcing disclosure’”337 and explained that “[i]n national security cases, some sacrifice
to the ideals of the full adversary process are inevitable.”338
The plaintiffs also argued that the FBI investigation of Saudi nationals on U.S. territory is
essentially a domestic criminal matter and does not entail national security concerns.339 The FBI
responded that “the September 11 attacks, perpetrated by a foreign terrorist organization, are
inarguably a matter related to the national security of the United States.”340 Noting the
considerable authority the executive branch has over classified information, the magistrate judge
agreed with the FBI.341 The district court judge overseeing the litigation adopted the magistrate’s
opinion.342
The Biden Administration has reported that the FBI investigation is completed and promised to
review the privileged information to determine what can be produced for plaintiffs.343 The first
332 In re Terrorist Attacks of September 11, 2001, No. 03-MDL-1570 (S.D.N.Y.).
333 Declaration of William P. Barr, In re Terrorist Attacks of September 11, 2001, No. 03-MDL-1570 (S.D.N.Y. Apr.
13, 2021), ECF No. 6412. The document indicates it is the second such declaration with respect to these categories of
information.
334 See In re Terrorist Attacks of September 11, 2001, No. 03-MDL-1570, 2020 WL 6161732 at *3-4 (S.D.N.Y. Oct.
21, 2020).
335 Id. at *3.
336 Id..at *5.
337 Id., at *6 (quoting Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973)).
338 Id. (quoting Military Audit Project v. Casey, 656 F.2d 724, 751 (D.C. Cir. 1981)) (alteration in original).
339 Id. at *7.
340 Id. at *6.
341 Id. (citing Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988)).
342 See Memorandum Decision and Order, In re Terrorist Attacks of September 11, 2001, No. 03-MDL-1570, 2021 WL
1841469 (S.D. N.Y. May 6, 2021).
343 Katie Rogers, et al., U.S. Signals It Will Release Some Still-Secret Files on Saudi Arabia and 9/11, N.Y. TIMES,
(Aug. 9, 2021), https://www.nytimes.com/2021/08/09/us/politics/sept-11-saudi-arabia-biden.html.
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relevant document pertaining to the involvement of Saudi nationals in the September 11 attacks
was released on September 11, 2021.344
Considerations for Congress
In 2009, then-Attorney General Eric Holder issued a memorandum providing guidance for
executive branch invocations of the state secrets privilege.345 The guidelines state 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.”346 DOJ has stated that it will defend invocation of the privilege only when the “agency
seeking to assert the privilege makes a sufficient showing that assertion of the privilege is
necessary to protect information the unauthorized disclosure of which reasonably could be
expected to cause significant harm to the national defense or foreign relations,” including
classified information and nonpublic unclassified information that could damage national security
if disclosed.347 DOJ’s stated policy is to invoke the privilege narrowly, seeking dismissal only
where necessary to guard national security.348 The privilege is not to be invoked to conceal
wrongdoing, inefficiency, administrative error, or embarrassment or for delay or other improper
reasons.349 The memorandum creates a review committee to assess assertions of the privilege and
provides recommendations to the Attorney General, whose approval is necessary for the assertion
to go forward.350
Congress has the power to legislate on matters involving discovery, evidentiary rules and
standards, and court process.351 On the other hand, classified information is a subject over which
courts have tended to grant broad deference to the President, citing his constitutional authority.352
Although invocations of the state secrets privilege are relatively rare,353 they may have stark
results for civil litigants.354 Congress may review whether this process is effective in balancing
344 Devlin Barrett, FBI releases 9/11 investigation document that scrutinized Saudis, WASH. POST, (Sep. 12, 2021),
https://www.washingtonpost.com/national-security/fbi-911-document-declassified/2021/09/12/fa37b584-13c9-11ec9589-31ac3173c2e5_story.html.
345 Memorandum from the Attorney General to Heads of Executive Departments and Agencies, Policies and
Procedures Governing Invocation of the State Secrets Privilege (Sep. 23, 2009),
http://www.justice.gov/archive/opa/documents/state-secret-privileges.pdf.
346 Id. at 1.
347 Id.
348 Id.
349 Id. at 2.
350 Id. at 2-3.
351 For more information, see CRS In Focus IF11557, Congress, the Judiciary, and Civil and Criminal Procedure, by
Joanna R. Lampe.
352 See, e.g., Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and
control access to information bearing on national security . . . flows primarily from this Constitutional investment of
power in the President and exists quite apart from any explicit congressional grant”) (quoting Cafeteria Workers v.
McElroy, 367 U.S. 886, 890 (1961)). The Court has suggested, however, that it might intervene where Congress has
provided contravening legislation. Egan at 530 (“Thus, unless Congress specifically has provided otherwise, courts
traditionally have been reluctant to intrude upon the authority of the Executive in military and national security
affairs.”) (emphasis added).
353 See Anthony John Trenga, What Judges Say and Do in Deciding National Security Cases: The Example of the State
Secrets Privilege, 9 HARV. NAT. SEC. J. 1, n.20 (2018).
354 See Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 GEO. WASH. L. REV. 1249,
1306-07 (2007) (demonstrating frequency of dismissals of entire cases based on the state secrets privilege).
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litigants’ needs against the legitimate need to safeguard national security and whether the process
reflects congressional priorities. Congress may also consider codifying the process, enacting new
or revised standards, or providing explicit guidance for courts to apply in evaluating assertions of
the state secrets privilege.355 For example, Congress may consider adopting civil procedural rules
akin to the Classified Information Procedures Act,356 which provides a means for making
substitutions for classified materials for use in criminal trials, either by defendants or by the
prosecution.357
Author Information
Jennifer K. Elsea
Legislative Attorney
Edward C. Liu
Legislative Attorney
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.
355 For an analysis of an earlier Senate bill to reform the use of the state secrets privilege, see generally Robert M.
Chesney, Legislative Reform of the State Secrets Privilege, 13 ROGER WILLIAMS U. L. REV. 443 (2008) (analyzing the
State Secrets Protection Act, S. 2533, 110th Cong. (2008)).
356 P.L. 96-456, 94 Stat. 2025 (1980), codified at 18 U.S.C. app. 3 §§ 1-16.
357 For more information, see CRS Report R41742, Protecting Classified Information and the Rights of Criminal
Defendants: The Classified Information Procedures Act, by Edward C. Liu.
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