JUDGING STATE SECRETS: WHO DECIDES-AND HOW? - After Snowden: Privacy, Secrecy, and Security in the Information Age (2015)

After Snowden: Privacy, Secrecy, and Security in the Information Age (2015)



BARRY SIEGEL is a Professor of English at the University of California, Irvine, and the Director of the UC Irvine Literary Journalism Program. From 1980 to 2003 he worked as a national correspondent for The Los Angeles Times and won numerous journalistic accolades, including the Pulitzer Prize for Feature Writing, which he received for his 2002 article “A Father’s Pain, a Judge’s Duty, and a Justice Beyond Their Reach.” He has written seven books, the most recent of which, Manifest Injustice: The True Story of a Convicted Murderer and the Lawyers Who Fought for His Freedom, was published in 2013. Additional information is available on his Web site: www.Barry-Siegel.com.

ON AUGUST 15, 2007, before an overflow crowd at the federal courthouse at 7th and Mission in San Francisco, three judges from the U.S. Ninth Circuit Court of Appeals listened to lawyers argue whether the once obscure “state secrets privilege” gives the government an absolute right to withhold documents, bury evidence, and block lawsuits. The particular cases at hand involved challenges to the Bush administration’s domestic surveillance programs, including the controversial warrantless wiretapping operation revealed by The New York Times in late 2005. For the government, Deputy Solicitor General Gregory Garre maintained that the cases must be dismissed instantly, no questions asked, because a trial would endanger national security. Presenting any evidence in a courtroom, he said, would put the country at “exceptionally grave harm.”

After listening to such claims for awhile, the senior judge on the appellate panel, Harry Pregerson, asked Garre whether the state secrets privilege meant that the courts must simply “rubber stamp” the decisions of the executive. “The bottom line here is the government declares something is a state secret, that’s the end of it…” Pregerson said. “The king can do no wrong.”

“This seems to put us in the ‘trust us’ category,” agreed Judge M. Margaret McKeown. “We don’t do it. Trust us. And don’t ask us about it.”

That’s more or less right, replied the government lawyer. Judges must give the executive branch “utmost deference.”

Pregerson looked irritated, and for good reason. Since the 9/11 terrorist attacks, the Bush administration had been repeatedly asserting the privilege as grounds for immediate dismissal at the pleading stage, before discovery, of cases challenging the executive branch’s wiretapping and extraordinary rendition programs. The government argued, almost always successfully, that the “very subject matter” of these lawsuits, rather than specific privileged documents, made them beyond judicial review. Such a stark expansion—transformation, really—of the state secrets privilege threatened to eliminate the judiciary’s role as a check on executive action. “What does ‘utmost deference’ mean? Bow to it?” Pregerson asked. He wondered what roles judges were to play: “Who decides whether something is a state secret or not?”

Let your mind roam and it could be August 9, 1950. In the Washington, D.C., federal courthouse that humid day, others faced a similar issue during litigation over the crash of an Air Force B-29 near Waycross, Georgia. A lawyer for the widows of three civilian engineers who died in that crash wanted the Air Force’s accident report, expecting it would shed light on the cause of the disaster. An Assistant U.S. Attorney balked, offering up Air Force affidavits that insisted the report “cannot be furnished without seriously hampering national security” because “the aircraft in question” was “engaged in a highly secret mission” and “carried confidential equipment.” In response, a skeptical U.S. District Judge William Kirkpatrick said, “I only want to know where your argument leads.” The Assistant U.S. Attorney made plain where it led: “We contend that the findings of the [executive branch] are binding … upon the Judiciary. You cannot review it or interpret it. That is what it comes down to.”

The state secrets privilege had long existed in common law, but here in Kirkpatrick’s courtroom the executive branch was launching a concerted drive to formally gain its explicit recognition. The litigation over the crash of a B-29 had started as a familiar tort action, but it had evolved into a test case for establishing the privilege—a test case that would lead to the landmark 1953 Supreme Court decision. Harry Pregerson’s question—Who decides whether something is a state secret or not?—has haunted judges ever since.

* * *

This is where it began: In early January 1949, the Air Force chief of staff’s office, having received an advance copy of an internal inquiry into the Waycross B-29 crash, promptly upgraded it and all related documents from “Restricted” to “Secret”—the highest security classification. The chief of staff had a reason. This report offered an unflinching (if incomplete) account of what happened over Waycross on October 6, 1948. Among the causes of the crash: an irregular flight team, missing heat shields that led to an engine fire, noncompliance with technical orders, inadvertent shutdown of a functioning engine, inability to maintain air speed, “confusion” among the crew, and the failure to brief civilians on emergency procedures. Though the report made no reference at all to “a highly secret mission” involving “confidential equipment,” this was not a document the Air Force wanted to share with civilian agencies or anyone else. “Due to the purpose and nature of the Accident Report,” an Assistant Vice Chief of Staff advised in a memo, “it is impossible to furnish copies.”

All the same, the lawyer for the three widows wanted that accident report. So the battle was joined before William Kirkpatrick, by then a legend to his fellow federal judges for his legal acuity. In downtown Philadelphia, he took his meals and played bridge at the Union League Club, a bastion of WASP Republicanism, but his opinions often reflected a concern for the protection of individual rights. He also believed in an independent, strong-minded judiciary. What he seemed to care about most was getting all the facts on the table. In any discovery dispute, it was a sure bet he’d rule to get the maximum out there.

That’s how he ruled, in June 1950, concerning the B-29 case: “I conclude that good cause appears for the production of all documents which are subject to the motion.” He wanted it known that the type of executive immunity asserted by the government “had been fully considered and held not sustainable.”

Within days of Kirkpatrick’s order, the Air Force informed the Justice Department it still would not produce the accident report—the Air Force would not hand it over even to the attorney general. What’s more, the Air Force was now, for the first time in the litigation, formally invoking the common law state secrets privilege. It was this claim that Kirkpatrick had before him at the hearing on August 9 in the Washington, D.C., federal courthouse (where he was sitting during the summer months). He did not sound inclined to accept the government’s position. “That claim has been made in other cases,” he pointed out, “and it has been usually met by submission of the [documents] to the Court to determine whether or not it is data which would imperil the safety of the military position of the United States.”

“That procedure was followed in two cases…” Assistant U.S. Attorney Thomas Curtin allowed. “[But] we do not believe that is good law. We contend that the findings of the head of the Department are binding, and the judiciary cannot waive it … The Executive is the person who must make that determination, not the Judiciary…”

Kirkpatrick was having none of that. Despite the new state secrets claim, he would not relinquish jurisdiction; he would not agree that the judiciary had no say in this matter. But rather than require the United States to hand over the disputed documents to the widows, he now ruled, in an amended order, that the government should hand them over to him—far from public disclosure—“so that this Court may determine whether or not all or parts of such documents contain matters of a confidential nature.”

To no one’s surprise, the government did not produce the documents as mandated on October 4. Eight days later, Kirkpatrick entered a default judgment in favor of the plaintiffs, finding that the B-29 crash and the resulting deaths of civilian engineers Al Palya, William Brauner, and Robert Reynolds were “caused solely and exclusively by the negligence and wrongful acts and omissions” of the United States of America.

In an appeal filed to the U.S. Third Circuit Court of Appeals in April 1951, the government did more than challenge Kirkpatrick’s ruling: It challenged Kirkpatrick’s very right to make a ruling. Most fundamentally, the government now questioned whether any judge could force the executive branch to hand over documents it considered privileged: “We believe that the determination of what documents should not be disclosed … is … necessarily within the discretion and distinctive knowledge of the executive branch.”

At a hearing on October 19, 1951, that assertion received much attention from a three-judge appellate panel led by Judge Albert Maris. If Kirkpatrick was a legend among the federal judiciary in Philadelphia, Maris was an icon recognized as among the finest jurists in the country. For weeks after the hearing, the matter of three widows suing the United States of America occupied his mind, for it had been decided he would write the appellate panel’s decision. Maris returned time and again to Kirkpatrick’s opinion. He and Kirkpatrick could not have been more different in their origins or politics (Maris came from very modest means and a liberal Democratic perspective, Kirkpatrick from affluence and a crusty Republican outlook), but they shared a belief in the notion of three separate but equal branches of government. They also shared the context in which they lived: the dawn of the Cold War, with a seemingly apocalyptic threat from the Soviet Union, a newly emerged Red China and East Germany, and the growing wave of Red Scare McCarthyism. The Soviets now had the bomb, Truman was talking about a “wave of hysteria sweeping the nation,” and government lawyers in courtrooms were implicitly suggesting the country might somehow expire if secrets weren’t protected. Maris and Kirkpatrick, in other words, were facing frightful pressures equal to any felt by post-9/11 judges. Nonetheless, they remained insistent that judges not relinquish their role as custodians of the country’s constitutional rights and protections.

On the morning of December 11, Judge Maris finally filed his panel’s unanimous “Opinion of the Court.” Ruling in favor of the three widows, he offered a resounding affirmation of Kirkpatrick’s decision, yet he went even further than Kirkpatrick in addressing the critical underlying issues involving the role of the judiciary and the balance of powers. In words both prescient and eloquent—his opinion, which reads as if written today, is still studied by law students—he made plain that he saw dangers in what the government sought: “It is but a small step to assert a privilege against any disclosure of records merely because they might prove embarrassing to government officials. Indeed, it requires no great flight of imagination to realize that if the Government’s contentions in these cases were affirmed, the privilege against disclosure might gradually be enlarged … until as is the case in some nations today, it embraced the whole range of government activities…”

What bothered Maris most was the government’s assertion of unilateral executive power, free from judicial review, to decide what qualified as secret. Maris pointed out that Kirkpatrick had not ordered any documents to be disclosed publicly; he’d only directed that they be produced for private examination in his chambers.

The Government was thus adequately protected.… [But] the Government contends … that it is within the sole province of the Secretary of the Air Force to determine whether any privileged material is contained in the documents and that his determination of this question must be accepted by the district court without any independent consideration.… We cannot accede to this proposition.… [T]o hold that the head of an executive department of the Government in a [law]suit to which the United States is a party may conclusively determine the Government’s claim of privilege is to abdicate the judicial function and permit the executive branch of the Government to infringe the independent province of the judiciary as laid down by the Constitution.

This abdication seemed unimaginable to Maris: “[T]he Government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary.…

“Since we find no error,” Maris concluded, “the judgments entered in favor of the plaintiffs … will be affirmed.”

* * *

The government appealed again, and the Supreme Court took just three weeks to decide it would hear U.S. v. Reynolds (though four of the nine justices initially wanted to affirm Maris and deny certiorari). The Court at this time included a number of luminous, powerful personalities, including William Douglas, Hugo Black, Robert Jackson, and Felix Frankfurter. However, it was headed by a patient, amiable and thoroughly unremarkable Kentucky politician named Fred Vinson, a poker and drinking buddy of President Harry Truman, who in his seven years on the Court displayed a pronounced inclination to support the government against any challenge to its power. Nowhere was this tendency more apparent than in cases involving matters of national security. Vinson favored giving the government unfettered power to defend against the many perils of the postwar world.

In U.S. v. Reynolds, his perspective prevailed. After hearing oral argument, the justices, by a vote of 6–3 (with Black, Jackson, and Frankfurter dissenting), decided to reverse Maris. On March 9, 1953, Fred Vinson, from the bench, announced and read from the decision he’d written. As usual, he had reached in this opinion for a conciliatory balancing act, but in the end he had, also as usual, deferred to the executive branch.

Yes, Vinson held, the government had made “a valid claim of privilege” against revealing military secrets, a privilege “well established in the law of evidence.” By “well established” he meant mainly that the state secrets privilege was rooted in common law—the British system of doctrines, customs, and usages deriving from court decisions rather than from codified statutory law. However, it can’t be said such cases specifically defined or established the state secrets privilege. In truth, only now was the Supreme Court formally recognizing the privilege. Most important, the Court was also—for the first time—spelling out how the privilege should be applied.

The privilege must be asserted by the government, Vinson declared, and it is not to be “lightly invoked.” There must be a formal claim lodged by the head of a department “after actual personal consideration by that officer.” The Court itself must determine “whether the circumstances are appropriate for the claim of privilege,” and yet do so “without forcing disclosure of the very thing the privilege is designed to protect.”

This last, of course, was the tricky, ambiguous part; Vinson acknowledged that “the latter requirement is the only one which presents real difficulty.” To resolve it, Vinson presented a “formula of compromise” that essentially said the government shouldn’t have absolute autonomy, but courts shouldn’t always insist on seeing the documents. You can’t abdicate control over the evidence “to the caprice of executive officers,” Vinson instructed trial judges, but if the government can satisfy you that “a reasonable danger” to national security exists, you shouldn’t insist upon examining the documents, even alone in chambers.

In each case, Vinson added, “the showing of necessity” for the documents will “determine how far the court should probe” in determining the validity of a privilege claim. Where there is a strong showing of need, “the claim of privilege should not be lightly accepted,” but even the most compelling need “cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”

At best, Vinson’s Reynolds opinion can be seen as a limited, fairly reasonable way to weigh competing legitimate interests. In theory, it did make a kind of sense. Except, of course, for the tricky final condition Vinson laid down—that the judge must evaluate the claim “without forcing a disclosure of the very thing the privilege is designed to protect.” How to know if the disputed documents contain secrets without examining them? Why would a federal judge be “forcing a disclosure” if he read the document in the privacy of his chambers? In the years to come, Vinson’s “formula of compromise” would increasingly make more sense on the page than in courtrooms. By instructing judges not to insist upon examining documents if the government can satisfy that “a reasonable danger” to national security exists, Vinson was asking jurists to fly blind.

Which is precisely what he had done in this case: “Certainly,” he concluded, “there was a reasonable danger that the accident investigation would contain references to the secret electronic equipment which was the primary concern of the mission.” However, Vinson couldn’t truly know for “certain,” because the Supreme Court justices never read—never asked to read—the disputed Air Force accident report. If they had, they would have seen that the report contained no references to secret electronic equipment. At bottom, Vinson’s opinion represented an act of faith. We must believe the government, Vinson held, when it claims this B-29 accident report would reveal state secrets. We must trust that the government is telling us the truth.

* * *

The application of Reynolds started out slowly, with the government asserting the privilege only four times in the first twenty years, and prevailing only twice. Then came the case that sparked the state secrets trend: United States v. Richard M. Nixon, the 1974 dispute over whether Nixon had to produce tape recordings and documents related to White House conversations about the Watergate scandal. Oddly, this was a case where an invocation of Reynolds failed. In a legal brief, White House counsel maintained that “the principles announced in Reynolds have been applied by the lower courts to all claims of executive privilege, whether dealing with military secrets or with other kinds of information.” The Supreme Court wouldn’t accept that, but not because it rejected Reynolds. The justices made clear they were denying Nixon’s claim because it was based “merely on the ground of a generalized interest in confidentiality” rather than on “military or diplomatic secrets.” By drawing such a sharp distinction between the two, the Nixon opinion inspired Presidents and government agencies forever after to make state secrets claims rather than more general executive privilege claims. They now had a fairly clear reading from the Supreme Court that they’d prevail with state secrets.

This is certainly one reason for the sudden spike in use of the privilege during President Jimmy Carter’s administration. With this increase in use, government lawyers could not avoid noticing a judicial willingness to accept the claims—and this willingness only fueled the trend. Scholars differ when calculating state secrets claims—they use varying definitions and criteria—but according to one count, in the twenty-three years between the Reynolds decision and Carter’s election in 1976, there were five cases in which the government invoked privilege; between 1977 and 2001, there were sixty-two.

Along with the numbers, the scope of what constituted state secrets began to expand, as did the definition of the privilege. No cases played a bigger role than Halkin v. Helms I, decided in June 1978, and Halkin v. Helms II, decided in September 1982. These decisions arose from lawsuits filed by former Vietnam War protestors who’d been subjected—like millions of citizens in recent years—to intelligence agencies’ surveillance and wiretapping. Saying judges “should accord utmost deference to executive assertions of privilege,” the district and appellate courts soundly upheld a CIA state secrets claim, which in effect stopped the litigation, since the plaintiffs couldn’t get the information needed to prove their case.

What made the Halkin opinions even more pivotal was their embrace of the so-called mosaic theory about what constituted state secrets. No longer did the state secret have to be momentous or, for that matter, entirely secret:

It requires little reflection that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate. As the Fourth Circuit Court of Appeals has observed: The significance of one item of information may frequently depend upon knowledge of many other items of information. What may seem trivial to the uninformed may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context. The courts, of course, are ill equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area.

The retreat of the judiciary intensified as the years passed. In December 1980, in a lawsuit over a contractual relationship with the Navy, the Fourth U.S. Circuit not only honored the Navy’s state secrets claim but also held—in a ruling that foreshadowed recent post-9/11 cases—that the plaintiff could make no further attempt to press his action, even with nonprivileged information. In May 1983, in another case involving warrantless electronic surveillance, the D.C. Court of Appeals again talked of the “mosaic theory” and of “factors that limit judicial competence” to evaluate claims. In November 1985, in a defamation action brought by a scientist accused of espionage, a federal court once more foreshadowed post-9/11 cases by stopping a lawsuit cold, this time within an hour of when the Navy intervened; there just was no way to try the case, the trial and appellate judges agreed, without compromising sensitive military secrets.

Then came two rulings, concerning an Iraqi missile attack on the U.S. Navy frigate USS Stark, that would provide particularly instructive models for deferential judges to follow in the post-9/11 world of wiretapping and extraordinary rendition. When the estate of a crewman killed in the May 1987 attack filed a wrongful death action against various military contractors, the Secretary of the Navy asserted the state secrets privilege, the government moved to dismiss, and a district court promptly complied because the factual issues “could not be resolved without access to classified information.” Even without this reason, the court found, the case still must be dismissed because it presents a “political question” about military decision-making that’s not subject to judicial review. An appellate panel, in affirming, would not send the case back to district court even for private in camera proceedings.

Following this first Stark case (Zuckerman v. General Dynamics), the second one (Bareford v. General Dynamics) made much the same claims, but presented a more complicated situation, since those suing submitted 2,500 pages of unclassified information. To no end: Even if the plaintiffs could make their case using this unprivileged information, the district court ruled, the state secrets doctrine barred the action because a trial would threaten disclosure of state secrets. Going further, an appellate court also noted that because “classified and unclassified information cannot always be separated,” it was appropriate for courts to restrict access not only to evidence involving state secrets but also “those pieces of evidence … which press so closely upon highly sensitive material that they create a high risk of inadvertent or indirect disclosures.”

By then, the progeny of Reynolds, so appreciably expanded and evolved, little resembled their parent. Just as Judge Maris had predicted, the impulse to protect military secrets had come to look more like the impulse to cover up mistakes, avoid embarrassment, and gain insulation from liability.

* * *

In February 1989, there came a singular revelation from a former solicitor general. Eighteen years before, Erwin Griswold had stood before the Supreme Court representing the United States in the landmark Pentagon Papers case (New York Times v. United States), where the government, making national security claims, sought to prevent publication of leaked documents about the Vietnam War. Although Griswold, a former dean of Harvard Law School, had only skimmed a summary memo on what the Pentagon Papers contained, his legal brief warned the Court that publication of these papers would pose a “grave and immediate danger to the security of the United States.” Now, on February 15, 1989, he stepped forward in a Washington Post op-ed piece to write: “I have never seen any trace of a threat to the national security from the publication [of the Pentagon Papers]. Indeed, I have never seen it even suggested that there was such an actual threat.… It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security but rather with governmental embarrassment of one sort or another.”

By the time Griswold wrote this, not just unclassified but readily available public information, such as newspaper articles, had become subject to national security claims. Judges were requiring private in camera review of documents in less than a quarter of cases. Yet direct invocations of the state secrets privilege were by no means the broadest legacy of Reynolds. Merely by waving Reynolds in the background for “atmospheric effect,” government lawyers had learned they could gain significant judicial deference.

This general judicial deference has been the greatest legacy of Reynolds. Faced with ominous claims about national security, judges in recent years have found it hard to deny governmental power. In fact, it’s fair to say that over time, many judges embraced deference. They liked it: Deference let them off the hook. Understandably, no one wanted to be the judge whose ruling led to a disastrous cataclysmic apocalyptic event. Better to say, “We’re not equipped … we can’t tell whether it implicates national security … we need to leave this to those who know.” The result: Justice Department lawyers now firmly possess—and use—what they sought more than sixty years ago.

Government assertions of the state secrets privilege particularly multiplied—and expanded in scope—with the Bush administration’s post-9/11 war on terror. By the best available count, Bush over two terms made forty-eight claims, easily eclipsing all past administrations.1 Hardly any were rejected by judges at a final legal stage.

The biggest difference from past practice: Without any back-and-forth litigating at all, government lawyers were now seeking instant, wholesale dismissal of every case challenging the constitutionality of the warrantless wiretapping and extraordinary rendition programs. They were saying the cases simply could not be adjudicated—even if they involved violations of the law by the government.2

In 2000, the CIA successfully moved to dismiss an employee’s gender discrimination lawsuit by claiming the state secrets privilege; a U.S. district judge in Virginia found that the mere existence of a trial would jeopardize national security. In 2003, the Bush administration again blocked a lawsuit, this one brought by a senior engineer who charged that a military contractor had submitted false test results. That same month, the government, while seeking to block publication of a book by a former Los Alamos National Laboratory employee, refused to let the employee’s own lawyer see the manuscript—and advised U.S. District Judge Emmet Sullivan that the matter was “not reviewable” in his court. When Judge Sullivan rejected this notion, ruling that the lawyer could read his client’s manuscript—“this Court will not allow the government to cloak its violations of plaintiff’s First Amendment rights in a blanket of national security”—he found himself reversed by an appellate panel.

Then came The New York Times’s revelation, in mid–December 2005, that President Bush, without judicial approval or knowledge, had secretly authorized the National Security Agency to eavesdrop on Americans and others in the country. During a Saturday radio talk on December 17 and a Monday press conference on December 19, Bush insisted he had the right to assert such sweeping executive powers in the war against terrorism. “The fact that we’re discussing this program is helping the enemy,” Bush said testily.

A cascade of lawsuits challenging the government’s warrantless wiretapping began to fill courthouse dockets in May 2006. In all of them, the Bush administration invoked the state secrets privilege, seeking outright dismissal at the pleading stage because the very subject matter of the lawsuits involved state secrets. To support this assertion, government lawyers submitted no evidence for judges to examine, only affidavits signed by executive branch officials—officials who sometimes headed the very agencies being sued. For a time at least, the government lawyers finally appeared to have overplayed their hand. No longer could such claims of privilege be made with little notice or resistance. The NSA wiretapping cases drew wide attention and loud protest from commentators, lawyers, and citizen groups. There were complaints about the privilege being “judicially mishandled to the detriment of our constitutional system.” There were proposals for change, including mandatory in camera judicial review of all claims. There were calls for judges to push back against the executive branch.

There were even a few occasions where federal district judges did just that. In the summer of 2006, U.S. District Judge Vaughn R. Walker in San Francisco (an unorthodox, independent-minded George H. W. Bush appointee, at the time Chief Judge of the Northern District of California) ventured to deny a state secrets claim in Hepting v. AT&T, a domestic eavesdropping case. Judge Walker wasn’t overly impressed with the government’s argument that the “very subject matter” of the action concerned privileged information. There’s been a great deal of publicity about the wiretapping program, he pointed out, and public acknowledgments by President Bush, so “the very subject matter of this action is hardly a secret.” What’s more, “no case is dismissed because its ‘very subject matter’ was a state secret involved ongoing, widespread violations of individual constitutional rights.” Walker thought it “premature” to decide whether the case should be dismissed on grounds that the plaintiffs, without privileged documents, couldn’t make a prima facie case or AT&T couldn’t defend itself. He would let discovery proceed, then assess that issue. This he would do despite the government’s audacious argument that the court, “even if it were to find unlawfulness upon in camera, ex parte review,” could not adjudicate the case because doing so would confirm the existence of the surveillance program and so jeopardize national security. “It is important to note that even the state secrets privilege has its limits,” Judge Walker pointed out, his words echoing those of Albert Maris. “While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it.… To defer to a blanket assertion of secrecy here would be to abdicate that duty…”

In Detroit that summer of 2006, U.S. District Judge Anna Diggs Taylor also rejected the government’s “very subject matter is secret” argument in another wiretapping case, ACLU v. NSA. Like Walker, she pointed out that the government’s public admissions contradicted its claims of secrecy, and provided a basis for the plaintiffs to establish a prima facie case without using privileged documents. Yet she went further than Walker at this stage: Based on her findings, she granted the ACLU summary judgment and imposed a permanent injunction on the NSA wiretapping program, ruling it unconstitutional.

Then the appellate courts and Congress stepped in with responses that for the most part impeded or stopped the litigation. The U.S. Sixth Circuit Court of Appeals made it simple in ACLU v. NSA: It vacated Judge Taylor’s decision, ruling that the plaintiffs (a group of journalists, academics, attorneys, and nonprofit organizations) lacked standing since they couldn’t prove they, specifically, were subjects of surveillance—which, of course, they couldn’t prove because the government considered the matter a state secret. Other cases, such as the Hepting complaint before Judge Walker, stalled when Congress passed the FISA Amendments Act of 2008, which retroactively granted immunity to telecommunication companies that cooperated with NSA.

The surviving cases—those filed against NSA or the government, rather than a phone company—have bounced back and forth between trial and appellate courts. Judges fairly often have weighed whether plaintiffs can establish standing as victims without privileged information (sometimes yes, usually no). They have also considered, more than once, whether the wiretapping cases can be litigated under the procedures of the 1978 Foreign Intelligence Surveillance Act, which besides creating a FISA court to oversee surveillance warrants also provided a civil remedy for “aggrieved persons” subjected to unlawful surveillance. This suggested an intriguing possibility: If FISA could be applied to wiretapping cases, it would effectively preempt the state secrets privilege.

* * *

For a time, at least, that’s what appeared to happen in Al-Haramain v. Bush, the most revealing, compelling, and all-embodying challenge to the warrantless surveillance program. This case merits close attention, for it proceeded further, and touched more issues, than any other challenge to the use of NSA wiretaps. Because the plaintiffs filed against the government rather than a company, the FISA Amendments Act didn’t block it. And where other plaintiffs struggled to obtain standing, the government inadvertently provided the Al-Haramain Islamic Foundation, then a Muslim charity active in more than fifty countries, with a secret document (called the “Sealed Document” in litigation) proving that it had been subjected to warrantless NSA surveillance. The result of that surveillance: In February 2004, the Treasury Department temporarily froze Al-Haramain assets pending a proceeding that ultimately led to the foundation and one of its directors being declared “Specially Designated Global Terrorists.” (The UN Security Council has also identified Al-Haramain as an entity belonging to or associated with al Qaeda.)

When Al-Haramain filed suit in Oregon in February 2006, attaching to its complaint a copy of the secret document, the government’s first response was to try to seize that document from the court. This involved sending FBI agents to the federal courthouse in Portland and demanding, through a Department of Justice attorney, that U.S. District Judge Garr M. King hand over the document for storage in a top secret repository (the government calls it a “Sensitive Compartmented Information Facility”). The executive branch backed down only after Judge King, resisting the idea of the feds invading his files, asked the government attorney, “What if I say I will not deliver it to the FBI…?”3

Next, as it did with all the wiretap cases, the government asserted the state secrets privilege, arguing the case must be dismissed because both the “Sealed Document” and the “very subject matter” of the proceeding were state secrets. Judge King rejected the “subject matter” claim (again because so much was already publicly known about the wiretapping program), but after in camera review of the Sealed Document, he accepted that it was a state secret. Still, Judge King didn’t roll over. Reaching to find a way to keep the litigation going, he decided Al-Haramain lawyers could file an in camera affidavit attesting to the contents of the secret document they had seen.

On appeal, Al-Haramain v. Bush ended up before a three-judge Ninth Circuit panel—it was this case (combined with Hepting) that Judge Harry Pregerson had before him in the San Francisco federal courthouse on that day in August 2007 when he asked, “Who decides whether something is a state secret or not?” Pregerson, along with Judges Michael Hawkins and M. Margaret McKeown, listened on August 15 to government lawyers tell them they must give the executive branch “utmost deference,” that otherwise they would be putting the country at “exceptionally grave harm.” They also listened to both sides awkwardly dance around the matter of what the Sealed Document contained—something they couldn’t discuss in the courtroom. The exchanges among lawyers and judges combined the best of Kafka and Lewis Carroll. “What’s in the Document, I cannot mention it today,” advised Jon Eisenberg, the lead lawyer for Al-Haramain. Nor could the DOJ attorney, Thomas Bondy, who nevertheless argued at length that what the plaintiffs think they know from the document isn’t necessarily true—“it’s entirely possible that everything they think they know … is completely false.” At one point, Judge McKeown observed, “Boy, we are really splitting the ‘knows.’” Added Judge Hawkins, “Sounds like Donald Rumsfeld.”

The judges’ eventual ruling reflected the difficulties that come into play whenever the government makes momentous claims about national security. In an opinion written by Judge McKeown and filed on November 16, 2007, the judges scoffed at the idea that the very subject matter of the TSP (terrorist surveillance program) was a secret. After The New York Times revelations in late 2005, McKeown pointed out, “government officials moved at lightning-speed to quell public concern and doled out a series of detailed disclosures.” So “the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret. Unlike a truly secret or ‘black box’ program … the government has moved affirmatively to engage in public discourse about the TSP.… There has been a cascade of acknowledgments and information…” For that reason, the appellate judges “agree with the district court that the state secrets privilege does not bar the very subject matter of this action.”

However, their in camera review of the Sealed Document had swayed them (as it did the district court) that this document was protected by the state secrets privilege. In explaining their finding, these judges seemed to convey a certain defensive discomfort: “We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, eye, and not to accept at face value the government’s claim or justification of privilege. Simply saying ‘military secret,’ ‘national security,’ or ‘terrorist threat’ or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege…” Still, in the end “we acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.”

That “need to defer” had an additional consequence: The appellate panel didn’t agree with the district court that Al-Haramain could “reconstruct the essence of the document from memory.” Such an approach “countenances a back door around the privilege and would eviscerate the state secret itself…” And without the secret document, Al-Haramain can’t “prove it was a subject of surveillance,” so “cannot establish standing.” The result: Al-Haramain’s claims “must be dismissed.”

Unless, that is, FISA preempts the common law state secrets privilege—a claim Al-Haramain had made in its filings. In Oregon, Judge King had not addressed this question, and he’d made plain why: “I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally based privilege.” Though the judge didn’t want to go there, the Ninth Circuit panel did. Does FISA preempt the state secrets privilege? The appellate judges thought a district court should first decide: “We remand for determination of this claim.”

As a result of a transfer and consolidation of cases, Al-Haramain v. Bush ended up not back with the Oregon district judge, but before Judge Vaughan Walker in the Northern District of California, who (in Hepting and other cases) had already established a record of resisting Justice Department attempts to claim the state secrets privilege. He continued that pattern now. In July 2008, Walker held that FISA did indeed supersede the state secrets privilege. He rejected Bush’s claim that the President’s constitutional authority as commander in chief trumped the law, allowing him to order wiretaps without a warrant from a FISA court. “FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes,” he wrote, “and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims.” What’s more, “FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege…”

However, that still didn’t mean a victory for Al-Haramain: “FISA nonetheless does not appear to provide plaintiffs a viable remedy unless they can show that they are ‘aggrieved persons’ within the meaning of FISA.” How to do that without the Sealed Document? How to do that, given the government’s insistence that the entire wiretapping program was secret? Judge Walker thought the plaintiff should at least have the chance to try. So he dismissed Al-Haramain’s FISA claim “with leave to amend.” The plaintiffs “should have the opportunity to amend their claim to establish that they are ‘aggrieved persons’…”

A half year later, in January 2009, Judge Walker found that the plaintiffs had met that burden by using public information, including a 2007 speech by an FBI official who acknowledged Al-Haramain had been placed under surveillance. Since the plaintiffs had proved they were “aggrieved” (wiretapped in a manner that required a warrant), they could proceed with discovery under FISA. To facilitate that, Walker ordered the government to grant security clearances to the Al-Haramain lawyers, but NSA officials and Justice Department attorneys (it was now, newly, the Obama administration’s Justice Department) continued to defy orders to produce documents. In a February 27, 2009, filing, government lawyers (eerily echoing what they told Judge Kirkpatrick in 1950) advised Judge Walker that he lacked authority “to order the government to grant counsel access to classified information when the executive branch has denied them such access.” Al-Haramain’s lawyer, Jon Eisenberg, thought that pretty remarkable: “This is an executive branch threat to exercise control over a judicial branch function,” he told a reporter at the time.

A year later, Judge Walker had finally heard enough. On March 31, 2010, he granted summary judgment to Al-Haramain on its FISA claim. More broadly, in an act of singular resistance by a federal judge, he ruled that the NSA warrantless wiretapping program was illegal, that the 1978 FISA was the law of the land, that when the government failed to get a warrant to wiretap, it broke the law. He also slammed the Obama administration’s courtroom defense, which he called “argumentative acrobatics” that took a “flying leap” and missed “by a wide margin.” It exasperated him no end that government officials argued they were not required to respond even to public evidence of illegal wiretapping because the entire issue was too secret to be discussed in a courtroom. “Under defendants’ theory,” he wrote, “executive branch officials may treat FISA as optional and freely employ the [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive branch abuses of surveillance authority.”

Walker’s ringing conclusion: “FISA takes precedence over the state secrets privilege in this case.… Plaintiffs have met their burden of establishing their ‘aggrieved person’ status using non classified evidence. Because defendants denied plaintiffs’ counsel access to any classified filings in the litigation, even after top secret clearances were obtained for plaintiffs’ counsel and protective orders … proposed, the court directed the parties to conduct this phase of the litigation without classified evidence.… The court now determines that plaintiffs have submitted … sufficient non classified evidence to establish standing on their FISA claim.… Plaintiffs are therefore entitled to summary judgment in their favor on those matters…”

Here was a rare—in fact unprecedented—breakthrough ruling, bucking the pattern of judicial deference that has informed the history of state secrets litigation. Applause came from commentators, advocacy groups, and major newspaper editorial pages. All eyes turned to the Obama administration’s response: Would it appeal, or terminate a case that had been a political problem since the month after Obama took office? Would it honor its commitment, made in September 2009, to be more cautious in asserting the privilege, invoking it only when “absolutely necessary”?

In the end, the Obama administration did appeal—and prevailed. All through the litigation, even while asserting the state secrets privilege, the government also had been arguing that the doctrine of sovereign immunity prevented the executive branch from being sued over violations of FISA—you can’t sue “the king” unless the relevant statute expressly waived immunity. In his opinion, Judge Walker had ruled that the government “implicitly” waived sovereign immunity under the FISA civil liability provision, which allows aggrieved persons to sue for damages. That word “implicitly” didn’t quite go far enough.

The same three-judge panel that had been considering Al-Haramain since August 2007—Harry Pregerson, Michael Hawkins, M. Margaret McKeown—now, in August 2012, reversed Judge Walker’s decision, finding that the FISA statute didn’t waive sovereign immunity for this particular claim. Judge McKeown, writing for the unanimous panel: “It is well understood that any waiver of sovereign immunity must be unequivocally expressed.” Since there was no explicit waiver, the judgment in favor of Al-Haramain had to be vacated.

What this meant: Despite a finding that the executive had violated FISA and broken the law, he could get away with it—he couldn’t be sued and nothing more could be done. Even independent-minded judges like Michael Hawkins and Harry Pregerson hesitated to buck the government, particularly when the plaintiffs were designated terrorists rather than “good guy” citizens. The appellate panel at least recognized what they were doing: “This case effectively brings to an end the plaintiff’s ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization.”

* * *

By early 2013, almost all of the NSA wiretapping cases had failed or stalled out. Just two long-running ones remained, the remnants of the dozens filed in 2006. Jewel v. NSA and Shubert v. Obama had been consolidated before U.S. District Judge Jeffrey S. White in the Northern District of California. Here was another federal judge willing to challenge the government’s assertions. Like Vaughan Walker (who retired in February 2011), Judge White in July 2013 ruled that Shubert and Jewel could move forward despite state secrets claims because “Congress intended for FISA to displace the common law rules such as the state secrets privilege with regard to matters within FISA’s purview.”

Judge White went even further, though. In the month before his ruling, newspaper reports had started appearing based on Edward J. Snowden’s much-publicized release of classified material regarding NSA intelligence activities. So now White ordered the government to evaluate how the disclosures and declassification decisions since Snowden’s leaks had affected the government’s earlier assertions of the state secrets privilege. He also ordered the government to review for declassification its prior declarations regarding the state secrets privilege. Did the government still maintain everything was a secret, despite the Snowden leaks and subsequent disclosures?

Yes, it did. Or rather, yes and no. In court filings late on Friday, December 20, 2013, James R. Clapper, the Director of National Intelligence, declassified and publicly released eight previously classified declarations that the government had filed in support of state secrets claims. On May 5, 2014, he released ten more such declassified declarations. But in the proceedings before Judge White, Clapper continued to formally assert the state secrets privilege. Despite the impact of the disclosures by Snowden (which he called “extremely damaging to the national security of the United States”), Clapper argued that sensitive secrets remained at risk in any courtroom discussion. He was no longer asserting privilege, he explained, over “the existence of various presidentially authorized NSA intelligence activities, later transitioned to authority under FISA.” But he was continuing to assert privilege over “still-classified information concerning the scope and operational details of these intelligence activities.” This included information “that would tend to confirm or deny that particular persons were targets of or subject to NSA intelligence activities…”4Catch-22, in other words: The Jewel and Shubert plaintiffs still couldn’t gain the evidence that might prove they were an “aggrieved party.”

* * *

The NSA wiretapping cases at least featured some pushback from federal judges, however limited. Less of that has been apparent in the recent cases challenging the government’s extraordinary rendition and targeted killing programs. Here judges, confronted with ominous affidavits full of references to terrorists’ plots, apocalyptic threats, and secret foreign agreements—supported by materials provided in a sealed “cone of silence” environment—have largely accepted government arguments that the “very subject matter” of the lawsuits requires instant dismissal.

In doing so, they have been expanding the very notion of the state secrets privilege. Although U.S. v. Reynolds is widely viewed as the Supreme Court’s first explicit recognition of the privilege, the Court considered a different form of it many years before, in Totten v. United States(1875). Totten arose out of a contract between President Lincoln and a secret agent who was allegedly dispatched to spy on enemy troops. As the Court explained in a brief opinion: “It may be stated as a general principle, that 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.…” In other words, some cases just are not capable of being decided by a court of justice; they are what lawyers call “nonjusticiable.” Much more recently, in 2005, the Court reconfirmed this in Tenet v. Doe, seemingly limiting such cases to those involving espionage agreements, which “are altogether forbidden.” However, for a number of judges (prodded by government lawyers), this concept has now evolved into the more general principle that where the “very subject matter” of a lawsuit is a matter of state secret, the action must be dismissed without reaching the question of evidence. It has not escaped notice, by jurists and commentators, that these judges are essentially conflating Reynolds and Totten by approaching the state secrets doctrine as both a rule of nonjusticiability and as a privilege that may bar evidence needed to establish a prima facie case.5

There’s no consensus, though. Federal judges’ recent rulings have displayed considerable differences and confusion, particularly in the ways they interpret the connection between Reynolds and Totten and in their open desire for “non-judicial” routes to relief. Above all, they want Congress to act, they want Congress to provide solutions or guidance. In their opinions, they keep saying: Judges can’t resolve these matters, this is up to the political branches.

El-Masri v. Tenet offers a particularly compelling example. The case began in December 2005, when Khaled El-Masri, a German citizen of Lebanese descent, filed a complaint against former CIA Director George Tenet and others (including CIA employees and private corporations). El-Masri’s lawsuit asserted that he, in an apparent case of mistaken identity, had been kidnapped, tortured, and held in captivity for five months by the CIA. The details, as described in his complaint—which the court was obliged to take as true at this stage of the litigation—involved him being held repeatedly in isolation; being beaten, stripped, and sodomized with a foreign object; being blindfolded, shackled, and injected with sedatives; and being force-fed through tubes when he twice went on hunger strikes. Finally, according to El-Masri, his captors conceded to him that they’d detained him by mistake. On May 28, 2004, they flew him from Afghanistan to Albania, where they released him on the side of an abandoned road.

The United States, intervening, responded with a formal claim of state secrets privilege and motion for dismissal or summary judgment, on the grounds that continuing the suit would invariably lead to disclosure of state secrets. Pushing further—part of the new pattern—the government’s dismissal motion also argued that the “Totten bar” renders this case nonjusticiable. In support of its claim, the government submitted to U.S. District Judge T. S. Ellis III (a Reagan appointee and former naval aviator) a classified ex parte declaration labeled JUDGE’S EYES ONLY. This declaration wasn’t tangible evidence but rather a statement by the current CIA Director—a successor to George Tenet, the very person being sued—explaining that any admission or denial of El-Masri’s allegations would reveal the “means and methods” employed in pursuing the clandestine rendition program. Such a revelation would present a “grave risk of injury” to national security.

By then the rendition program was hardly a secret: there’d been widespread publicity, an extensive Council of Europe report, and government officials’ public affirmation of the program’s existence. However, Judge Ellis found the government claims persuasive, seeing a difference between “a general admission that a rendition program exists” and “the admission or denial of the specific facts at issue in this case.” So, however disturbing El-Masri’s account, Ellis did not believe the matter was “proper grist for the judicial mill.” On May 12, 2006, the same day he heard oral argument in the case, he granted the government’s motion for dismissal, based on its state secrets claim. He resisted only the government’s assertion that the Totten bar also rendered this case nonjusticiable: “The Totten bar is quite distinct from the state secrets privilege; it is not a privilege or a rule of evidence.… Because the valid assertion of the state secrets privilege presents an adequate ground for dismissal … it is unnecessary to reach and decide the applicability of the Totten bar to the facts of this case.”

Judge Ellis thought it “important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint.” Nothing in his ruling “should be taken as a sign of judicial approval or disapproval of rendition programs.” It just wasn’t up to the judiciary: Courts must not “blindly accept” executive branch assertions, but courts must “bear in mind the Executive Branch’s preeminent authority over military and diplomatic matters and its greater expertise relative to the justice branch…” If El-Masri’s allegations are true, “all fair-minded people” must agree that El-Masri deserves a remedy. “Yet … the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.”

On March 2, 2007, the U.S. Fourth Circuit Court of Appeals not only affirmed Judge Ellis, but significantly expanded his view of the state secrets privilege. Citing both Totten and Reynolds, the appellate panel, in a decision written by Judge Robert King (a Clinton appointee and former U.S. Attorney in West Virginia), emphasized the notion that the state secrets privilege performs a “function of constitutional significance.” Though the privilege usually was regarded as deriving from common law, the Fourth Circuit now asserted that it “has a firm foundation in the Constitution, in addition to its basis in the common law of evidence.” Again citing both Totten and Reynolds—openly conflating the two—Judge King wrote that the “Supreme Court has recognized that some matters are so pervaded by state secrets as to be incapable of judicial resolution.…” Though Totten traditionally had been seen as a narrow bar to lawsuits involving espionage contracts, the Fourth Circuit now decided it more broadly established that a “cause cannot be maintained if its trial would inevitably lead to the disclosure of privileged information.” Because “the central facts … that form the subject matter of El-Masri’s claim” remain state secrets, the court said it had to dismiss his case.

Judge King appeared to anticipate the criticism this decision would soon receive, even from brethren on the U.S. Ninth Circuit Court of Appeals. Near the end of his opinion, he took heated exception to the notion that their ruling “would enable the Executive to unilaterally avoid judicial scrutiny merely by asserting that state secrets are at stake.” No, he wrote, “the state secrets doctrine does not represent a surrender of judicial control.… As we have explained, it is the court, not the Executive, that determines whether the state secrets privilege has been properly invoked.… We have reviewed the Classified Declaration, as did the district court, and the extensive information it contains is crucial to our decision…” It’s worth repeating here that this pivotal “Classified Declaration” was a statement signed by the current director of the CIA—whose employees, past and present, were being sued.

In a petition urging the Supreme Court to review the Fourth Circuit decision, El-Masri’s ACLU lawyers cited the “substantial confusion in lower courts” regarding when the privilege may be invoked, what it covers, and whether it can ever properly be the basis for dismissing cases at the pleading stage. Give judges guidance and help, the lawyers begged. The Supreme Court “has authority and obligation to amend Reynolds evidentiary burdens if they interfere with the judiciary’s constitutional role in reviewing the legality of executive actions.” Otherwise “the government may engage in torture, declare it a state secret, and by virtue of that designation avoid any judicial accountability.”

Responding on October 9, 2007, the Supreme Court declined to review the Fourth Circuit’s El-Masri decision.

* * *

The judiciary’s retreat continued in Arar v. Ashcroft. Maher Arar’s claims sounded very much like El-Masri’s: Returning from a vacation, this Syrian-born Canadian citizen, employed as a software engineer in Massachusetts, was retained while changing planes at JFK. He ended up confined, interrogated, and tortured in Syria for more than a year before being released without any charges being filed. His lawsuit against the attorney general, the Secretary of Homeland Security, and the FBI Director drew the same government response as El-Masri’s: a motion, prior to discovery, for dismissal or summary judgment on state secrets grounds. Again the “secrets” didn’t involve particular items of evidence but rather the “very subject matter” of the case.

And again a federal judge promptly granted the motion to dismiss, prior to any discovery. U.S. District Judge David Trager (a Clinton appointee, former U.S. Attorney and Brooklyn Law School dean) didn’t directly address the state secrets claims, but explained he couldn’t grant damages “given the national security and foreign policy considerations at stake.” A U.S. Second Circuit Court of Appeals panel affirmed, saying the “claims under consideration involve significant national security decisions made in consultation with foreign powers” and so “counsel us to hesitate … in a domain so clearly inhospitable to the fact-finding procedures and methods of adjudication employed by the federal courts.”

Acting on its own, the Second Circuit judges decided to hold a fuller en banc rehearing, which in December 2009 yielded an opinion that explicitly handed the ball to Congress. In affirming the district court, the en banc panel said, “Our ruling does not preclude judicial review and oversight.… But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.… We decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather we conclude that … it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress—and not for us as judges—to decide whether an individual may seek compensation … for a constitutional violation.”

Again the Supreme Court declined to review, this time after Obama’s acting solicitor general, Neal Katyal, urged the justices not to take the case because it might affect national security and might raise questions about “the motives and sincerity of the United States officials who concluded that petitioner could be removed to Syria.”

Then came what may very well be the most consequential state secrets case of them all, Mohamed v. Jeppesen Dataplan, Inc. Jeppesen offers a revealing comparison to El-Masri, both in the way the judges’ decisions parallel and diverge from each other. Jeppesen by itself involves a fascinating mix of conflicting opinions: No case better illustrates the range of responses judges fashion when presented with a state secrets claim—responses that suggest more than a little perplexed agonizing.

The lawsuit, filed by ACLU lawyers in 2007 on behalf of five men who, in separate instances, had been detained, interrogated, tortured, and held in captivity by the CIA, sought damages not from the government, but from Jeppesen Dataplan, a Boeing subsidiary that had provided transportation services and logistical support for the extraordinary rendition program. The Bush administration instantly intervened before Jeppesen even answered the complaint, once again moving for dismissal on state secrets grounds. In February 2008, U.S. District Judge James Ware, after only limited review, granted the government’s motion to dismiss because the allegations were “clearly … subject matter which is a state secret.” This he decided even though the rendition program was public knowledge, recognized by the government, and even though Jeppesen Dataplan’s role in the program had been the subject of a major New Yorker piece by Jane Mayer.

The ACLU appealed, and while the appeal was pending at the U.S. Ninth Circuit, Barack Obama was elected President. At oral argument in February 2009—two weeks into the Obama administration—a Justice Department attorney, Douglas Letter, seemed to startle a three-judge appellate panel when he declared that the Obama administration was taking “exactly” the same position as the Bush administration—even though Obama, during the campaign, had spoken against overuse of the state secrets privilege. Once again, a Ninth Circuit panel could be seen pushing back, wondering who decides what’s secret. At one point, Judge Michael Hawkins, a Clinton appointee (and member of the appellate panel in Al-Haramain), asked the government lawyer, “So any time the executive branch of the government says the fact is classified, it means it cannot be examined?”

Letter, observing that national security was at stake, advised the court it should “not play with fire” by permitting the suit to go forward.

“Nor should the government in asserting [secrecy] privilege,” Hawkins replied.6

This particular appellate panel (Hawkins, William C. Canby Jr., Mary M. Schroeder, all Democratic appointees) just was not going to defer or follow the Fourth Circuit’s El-Masri holding. In an impassioned April 2009 opinion written by Hawkins, the panel reversed the district court’s dismissal, saying that the state secrets privilege only excluded evidence from discovery or admission at trial, and didn’t require dismissal at the pleadings stage. Dismissal at the very start, based on the “very subject matter” of the case, wasn’t warranted except in the narrow case of spy contracts. This opinion, unlike the Fourth Circuit’s, saw a clear difference between Reynolds and Totten: “Outside the extremely narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations … simply because the government regards the truth or falsity of the allegations to be secret. Indeed, to conclude that Reynolds, like Totten, applies to prevent the litigation of allegations, rather than simply discovery of evidence, would be to destroy the distinction between the two versions of the doctrine…”

Hawkins’s incisive conclusion: “At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official.… This sweeping characterization of the ‘very subject matter’ bar has no logical limit.… According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

These Ninth Circuit judges weren’t so inclined. The structural elements of the Constitution, they believed, “including the principles of separation of powers and judicial review,” strongly favor “a narrow construction of the blunt Totten doctrine and a broad construction of the more preciseReynolds privilege.”

This decision seemed to promise a pruning of the ever-expanding reach of the state secrets privilege. Here was a chance for the Obama administration to reconsider its stance about use of the privilege, and live up to Obama’s campaign promises. More than one editorialist called for the White House to not appeal.

However, that summer of 2009—even as the Justice Department prepared a memorandum establishing new, more restrained procedures for invocation of the state secrets privilege—the Obama administration did appeal the Ninth Circuit’s decision. Rather than turn to the Supreme Court, the government sought a full bench (en banc) review before a larger panel of Ninth Circuit judges. In October, the appellate court agreed to hold such a hearing, later explaining it did so “to resolve questions of exceptional importance regarding the scope and application of the state secrets doctrine.” As a result, on December 15, 2009, the lawyers gathered once again to argue about the state secrets privilege—this time before an eleven-judge panel.

What unfolded that day in the San Francisco federal courthouse made for compelling courthouse theater. There were many lively exchanges, with engaged judges challenging both sides, expressing a range of opinions and displaying an obvious sense of conflict. The sharply divided decision filed by these judges on September 8, 2010, clearly demonstrated that conflict. By a vote of 6–5 the en banc panel reversed the three-judge panel, affirmed the district court’s ruling, and dismissed the plaintiff’s action in Mohamed v. Jeppesen Dataplan.

While openly criticizing the Fourth Circuit’s “erroneous conflation” of the Totten bar and the Reynolds privilege in El-Masri, the en banc panel’s majority still concluded that dismissal at the pleading stage was required under Reynolds because there was “no feasible way to litigate Jeppesen’s alleged liability without creating an unjustified risk of divulging state secrets.” This reasoning, besides ignoring all the public information available about Jeppesen and the rendition program, required a tricky balancing act: Maintaining the distinction between the Totten bar and the Reynolds privilege “does not mean that the Reynolds privilege can never … result in a dismissal at the pleading stage…” In this way, the Reynolds privilege “converges with the Totten bar, because both require dismissal.” Thus, the Totten bar and the Reynolds privilege form “a continuum of analysis.”

From its very first words, the majority opinion, written by Judge Raymond C. Fisher (a Clinton appointee, former associate attorney general, and clerk to Supreme Court Justice William Brennan), conveyed the judges’ struggle: “This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security. Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.… After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed…”

Near the end of his opinion, Judge Fisher again signaled a sense of conflict, offering comments that seemed to recognize the inability—or failure—of the judiciary to provide a satisfactory resolution to this case. Handing off responsibility, he proposed “other remedies” outside of the judicial system: “Our holding today is not intended to foreclose … possible nonjudicial relief. Denial of a judicial forum based on the state secrets doctrine poses concerns at both individual and structural levels. For the individual plaintiffs … our decision … deprives them of the opportunity to prove their alleged mistreatment and obtain damages. At a structural level, terminating the case eliminates further judicial review in this civil litigation, one important check on alleged abuse by government officials and putative contractors. Other remedies may partially mitigate these concerns…”

He looked to the executive branch: “That the judicial branch may have deferred to the executive branch’s claim … does not preclude the government from honoring the fundamental principles of justice.… The government may be able to find ways to remedy alleged harms.… For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II.”

He looked to Congress: “Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch.… Congress also has the power to enact private bills.… When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.”

Above all, he pointed out that Congress “has the authority to enact remedial legislation” regarding the state secrets privilege. He invited Congress to authorize “appropriate causes of action and procedures to address claims like those presented here.”

In his conclusion, Judge Fisher once more made plain his unease: “For all the reasons the dissent articulates—including the impact on human rights, the importance of constitutional protections and the constraints of a judge-made doctrine—we do not reach our decision lightly or without close and skeptical scrutiny of the record and the government’s case for secrecy and dismissal.… We acknowledge that this case presents a painful conflict between human rights and national security. As judges, we have tried our best to evaluate the competing claims of plaintiffs and the government and resolve that conflict according to the principles governing the state secrets doctrine…”

In yet another sign of discomfort, the court, in a highly unusual move, ordered the government to pay the plaintiffs’ legal costs, even though they had lost the case and had not requested such a payment. The majority, in its opinion, also bowed several times to the five dissenters (“we accept and respect the principles that motivate the dissent”) and allowed those judges to attach an 1,800-page appendix, submitted by the plaintiffs, that documented the voluminous public record about the rendition program.

Only by one vote had this majority decision prevailed. Writing for the en banc panel’s five dissenting judges, Judge Michael Hawkins repeated many of the arguments he had offered in his earlier opinion. Then he turned to the majority’s recommendation of alternative remedies, which he considered an ineffective abdication of the judiciary’s role: “Suggesting, for example, that the Executive could ‘honor the fundamental principles of justice’ by determining ‘whether plaintiffs’ claims have merit’ disregards the concept of checks and balances. Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter.… Similarly, a congressional investigation, private bill or enactment of ‘remedial legislation,’ leaves to the legislative branch claims which the federal courts are better equipped to handle.”

Editorialists and commentators castigated the Ninth Circuit’s en banc ruling, The New York Times reminding its readers that “torture is a crime, not a secret.” The ACLU, as it did in El-Masri, appealed to the Supreme Court, again urging the justices to clarify conflicting case law and resolve widespread uncertainty as to whether the government can invoke the state secrets privilege at the pleading stage. In May 2011, the Supreme Court once more declined to review.

* * *

Just days after the Jeppesen decision, in a filing to the district court for the District of Columbia early on Saturday morning, September 25, 2010, the Obama administration again invoked the state secrets privilege—the first time it did so in defense of its own policies, rather than the Bush administration’s. This came in response to an action filed August 30 by the father of Anwar al-Aulaqi, seeking to stop the government’s plan for a targeted killing of his son, a dual U.S.-Yemeni citizen with alleged ties to the terrorist group al Qaeda in the Arabian Peninsula (AQAP). Anwar, hiding in Yemen, was in fact considered a central figure in AQAP, active in planning attacks, but he had not been charged with any crime.

In the legal arguments both sides offered (al-Aulaqi was represented by the ACLU and the Center for Constitutional Rights), it is easy to see the echoes and influences of all the previous NSA and rendition cases. Once again, the government sought an outright dismissal at the pleading stage—though this time, possibly sensitive to a mounting controversy, the government only proposed the state secrets privilege as a last choice “alternative” reason if all other defenses failed (among them: the plaintiff lacked standing, the court would have to decide nonjusticiable political questions). Once again, the plaintiffs pointed out that it made little sense for the government to claim secrecy for a targeted killing program that it had already acknowledged publicly through “an apparently coordinated media strategy.” Once again, the government argued back that state secrets “would remain intertwined in every step of the case … and the inherent risk of disclosures that would harm national security should be apparent from the outset.”

U.S. District Judge John D. Bates (a George W. Bush appointee, member of the FISA court, and former federal prosecutor) seemed genuinely troubled by what he, as a judge, was being asked to decide. “This is a unique and extraordinary case,” he wrote at the start of the opinion he delivered on December 7, 2010. “Both the threshold and merits issues present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure…”

To Judge Bates, “stark, and perplexing, questions readily come to mind.” Among them: “How it is that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?”

Also: “Can a U.S. citizen … use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for ‘jihad against the West,’ and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States?”

And: “Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization?”

Above all: “How can the courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified?”

Judge Bates didn’t think the courts could do this. Though the “legal and policy questions posed by this case are controversial and of great public interest,” he didn’t believe he had jurisdiction, he didn’t believe the plaintiff’s stated claims fell “within the ambit of the Judiciary to resolve.” In his legal reasoning, Bates cited and relied more than once on the Jeppesen en banc decision. He agreed that in some instances “the Reynolds privilege converges with the Totten bar,” meaning “the assertion of the privilege will require dismissal because it will become apparent during theReynolds analysis that the case cannot proceed without privileged evidence…”

In the end, though, Judge Bates decided he didn’t have to reach the state secrets claim. Instead he found that al-Aulaqi’s complaint raised political questions not answerable in a court of law. Once again, a judge looked elsewhere for a resolution. Because his finding required dismissal of the case at the outset, Bates wrote, “the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.”

Before that day came, the U.S. military acted: On September 30, 2011, an American drone strike in Yemen killed al-Aulaqi and several others.

* * *

Congress certainly is the “non-judicial forum” Bates and so many other judges have vainly been looking to in the past decade. Congress on its own, through hearings, investigations, legislation, and impeachment, could act as a check on the executive branch’s war on terror programs. Or it could provide guidance and support for the judiciary. As various legal commentators have pointed out,7 Congress has the power to define the federal courts’ jurisdiction and affect the judicial response to claims of privilege. It can establish the parameters of the privilege and bolster the courts’ authority. But it has never done so, it has never adopted legislation aimed at restricting use of the privilege.

Congress did consider codifying the state secrets privilege when it adopted the Federal Rules of Evidence in the 1970s, but decided not to. It also—at least according to a pair of federal court rulings—partly usurped the privilege in 1978 when it passed FISA, which provides judicial and congressional oversight of the government’s covert surveillance activities. (FISA was introduced by Senator Ted Kennedy and cosponsored by a bipartisan group of nine senators, in response to congressional investigations into President Nixon’s surveillance of political and activists groups). Congress again assigned judges responsibilities over national security matters in 1980, when it enacted the Classified Information Procedures Act (CIPA), which established procedures for how courts should respond to defense requests for classified documents in criminal cases.

The most direct effort to restrict use of the state secrets privilege came in 2008, when Senators Ted Kennedy, Arlen Specter, and Patrick Leahy introduced the State Secrets Protection Act, which among other things gave plaintiffs the “full opportunity” to complete nonprivileged discovery and required judges to examine (ex parte, in camera) actual evidence rather than trust the executive branch’s affidavits. That same year Congressman Jerrold Nadler introduced a similar bill in the House. Hearings were held, press releases issued, speeches delivered, reports distributed—but the bills never made it to the floor of the Senate or House. The bills were reintroduced in 2009, with the same result. Nadler vainly tried again in 2012, then once more in October 2013. There just have not been enough votes to move the bills, and no consensus or common ground with either the Bush or Obama administration.

It likely didn’t help when Bush’s attorney general, Michael Mukasey, wrote a letter to the Senate Judiciary Committee in March 2008 threatening a Bush veto. He argued (pointing to the executive’s constitutional role under Article II as commander in chief) that the privilege derived from the Constitution, so Congress couldn’t modify it through statutory law—even though it apparently had done just that with FISA. “It is highly questionable,” Mukasey wrote, “that Congress has the authority to alter the state secrets privilege, which is rooted in the Constitution and is not merely a common law privilege.”

Then came the Obama administration’s conciliatory words and September 2009 policy statement, outlining a modified, restricted use of the privilege. This apparently defused a lot of the momentum, leading some to assume the problem had been fixed. Others in Congress no doubt shied away from appearing “weak” on the war on terror. So rather than restrict use of the state secrets privilege, Congress, by passing the FISA Amendments Act, ended up broadening the government’s power to eavesdrop, without individual warrants, on international phone calls and e-mails.

Congress’s failure to check the executive, and failure to provide the courts with direction or reinforcement, has yielded consequences. At a 2008 oversight hearing, convened to support passage of Nadler’s bill in the House, H. Thomas Wells Jr., American Bar Association president-elect, attributed executive abuse in part to “the absence of congressional guidance.” Congressional silence, he added, has permitted courts to adopt “divergent” approaches to resolving cases and abdicating judicial oversight “without engaging in sufficient inquiry into the government’s assertion of privilege.”8

Congress, however, has not been entirely passive. In April 2014, the Senate Intelligence Committee, chaired by Senator Dianne Feinstein, voted to declassify hundreds of pages of a harshly critical report on the CIA’s extraordinary rendition program—a report the committee had been working on since 2009, despite constant stonewalling and evasion by the CIA. This report promised to reveal the very type of operational information that courts have been treating as litigation-stopping state secrets. Those who read it in the summer of 2014 said the report would accuse the CIA of brutally torturing terror suspects and misleading Congress, the White House, and the public about the program’s effectiveness. The declassification process was glacial, though, with CIA leaders past and present (including George Tenet) working behind the scenes to discredit and redact portions of the report—their goal clearly being to protect themselves, not national security. At the end of July, in a stunning revelation, an internal agency investigation confirmed that CIA officials had also hacked into a computer network used by the Senate Intelligence Committee in preparing its report, despite earlier denials by CIA Director John O. Brennan.

The agency’s invasive, tenacious resistance—not unlike its response to lawsuits—had its effect: At the start of August, the executive branch, after review and declassification, returned to the committee a heavily censored version of its report. The CIA itself, along with the Office of the National Director of Intelligence, had done most of the censoring, in what the White House press secretary, Josh Earnest, called “a good faith effort … to make redactions that are consistent with the need to protect national security.” Feinstein bristled, saying there had been “significant redactions” which “eliminate or obscure key facts that support the report’s findings and conclusions.” She pushed back: “We need additional time to understand the basis for these redactions and determine their justification. Therefore the report will be held until further notice and released when that process is completed.”9

The report’s release finally came on December 9, 2014, despite vociferous objections from the CIA and Republican critics. It delivered an even more scathing indictment of the CIA’s operation than expected. The report—a 524-page executive summary of a 6,000-page document—revealed that the CIA had regularly misled the White House and Congress about its methods in the war on terror—methods which were more brutal than the CIA had ever acknowledged either to Bush administration officials or to the public. In a speech in the Senate on the morning of the report’s release, Senator Feinstein called the CIA program “a stain on our values and our history.10

Late July 2014 saw one other promising effort in the Senate to restrict the expansion of government surveillance power: Spurred by Edward Snowden’s disclosures, Senator Patrick Leahy, with the backing of the White House, on July 29 introduced a version of the USA Freedom Act that improves on a gutted version the House passed in May. Although it doesn’t go far enough, it would significantly restrict NSA’s bulk collection of Americans’ telephone records, requiring the agency to ask for the records of a specific person or address, rather than conduct a broad dragnet. It would also alter the workings of the secret FISA court: Where the court now hears only the government’s case in a nonadversarial setting, and doesn’t reveal decisions, it would have to listen also to a panel of advocates arguing in support of privacy rights and civil liberties, and it would have to issue public summaries of decisions.11

* * *

Whatever happens in Congress—past failures to act don’t promise much—the courts retain a fundamental responsibility to serve as a check on executive excess and abuse. Judges should not keep looking to the “political branches” and “nonjudicial forums.” As a number of jurists and commentators have pointed out, when judges dismiss cases challenging the legality of executive conduct, they abdicate their role in a system predicated on checks and balances.12

Judges should at the very least allow discovery of nonprivileged evidence before dismissing cases because the “very subject matter” is a state secret. To assure that an evidentiary privilege isn’t used as an immunity shield, they should segregate evidence, structure discovery, and arrange security clearances for attorneys in a way that allows the courts a full Reynolds analysis. They should insist on in camera review of actual evidence, rather than just rely on government affidavits. They should recognize the substantive difference between a particular personal injury tort action (such as the B-29 crash in Reynolds), and the wholesale assertion of privilege to block judicial review of executive conduct in the war on terror.

Above all, they should think long and hard before trusting the government or accepting its claims—especially in the wake of the Senate Intelligence Committee report. They should understand it is in the self-interest of government operatives in the CIA and NSA to argue that the “very subject matter” is a secret. They should recognize that these cases are not truly about secrecy, but rather, immunity or impunity for people who have committed criminal acts. They should heed the words of the appellate judge who heard the Reynolds case in an era just as anxious and perilous as our post-9/11 world:

To hold that the head of an executive department of the Government in a [law]suit to which the United States is a party may conclusively determine the Government’s claim of privilege is to abdicate the judicial function.

In a system of three separate but equal powers of government, judges must do their job. Along with congressional action, what’s needed are jurists with the nerve and wisdom of William Kirkpatrick and Albert Maris.