Second Circuit approves of the district court’s ex parte and in camera review of the privilege before dismissing the action; circuit acknowledges “frustration” of parties since neither the plaintiffs nor the public participated in the process, in Doe v. Central Intelligence Agency, 576 F.3d 95 (2d Cir. Aug. 5, 2009) (No. 07-0797-cv)As noted in prior posts, the scope and application of the state secret privilege is under current and active debate. Legislation is pending in Congress. See State Secrets Protection Act To Be Heard By Senate Judiciary Committee.
The administration has been considering other options. See “New” Administration Procedures On The State Secrets Privilege Receives Initial Mixed Reception. In the meantime, the courts continue to consider the application of the state secret privilege. For example, the Ninth Circuit rejected a broad application of the privilege by the government, reversed the district court’s dismissal of the action and suggested judicial review of a privilege claim “on an item-by-item basis.” See Ninth Circuit Holds Court Should Determine Whether State Secret Privilege Applies (reviewing Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. 2009)). Recently, the Second Circuit reviewed the dismissal of a civil action after the CIA Director submitted a declaration in support of the state secrets privilege.
In the case, the wife and children of a covert-status former employee of the Central Intelligence Agency (“CIA”) brought an action against the CIA, CIA Director, the federal government, and another federal agency, which was redacted. The complaint alleged that the former CIA employee “was summarily separated from his CIA employment,” and “terminated immediately for unspecified reasons.” The family left for another country and the CIA “refused to provide any assistance, medical or otherwise.” The plaintiff is unable to leave the country and “lives in constant fear.” The complete basis for the civil action remains unclear as much of the information has been redacted from the public record.
The government asserted the state-secrets privilege and moved to dismiss the case. In support, the declaration of the CIA Director stated that he had “determined that the bases for [the] assertion of the state secrets privilege cannot be filed on the public court record, or in any sealed filing accessible to the plaintiffs or their attorneys, without revealing the very information that [the government sought] to protect.” The Director stated that “neither plaintiffs nor their attorneys possess the need to know all of the classified information.” He added that the risk of harm from “even an inadvertent slip” was “too great … to permit disclosure . . . even under protective provisions that the Court might be asked to enter.” According to the government, “the plaintiffs could not establish a prima facie case without access to the information covered by the assertion of the state-secrets privilege, and the defendants could not defend the case without disclosing it.” Doe, 576 F.3d at 99.
The district court reviewed the material ex parte and in camera, excluded the classified information based on the state-secrets privilege and dismissed the action. The plaintiffs appealed claiming the government infringed their constitutional right of access to the courts for failing to provide secure facilities to review the classified information and failed to provide secure facilities to communicate with their counsel since the plaintiffs reside abroad.
The Second Circuit affirmed the district court ruling, concluding no constitutional rights were violated by denying access to the information covered by the state-secrets privilege and the government did not infringe the right to communicate with counsel. Based on prior precedent, including United States v. Reynolds, 345 U.S. 1 (1953) (establishing procedures for the judicial review of the assertion of the common-law state-secrets privilege), and its progeny, the circuit noted:
Unarguably, then, the 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. The plaintiffs do not create such a right by asserting that they seek access to enable them to argue that the alleged state secrets are not really state secrets. … There may be cases in which a district judge would act within his or her permissible discretion by permitting the plaintiff’s counsel to take a greater role in the court’s state secrets deliberations where, in the circumstances, doing so would not endanger the secrets. We conclude no more than that the court acted properly in deciding otherwise here.Doe, 576 F.3d at 106 & n.10. On the right to communicate with counsel under the First Amendment, the circuit noted that the plaintiffs acknowledged that their attorney could travel to meet them in their country of residence, and the former employee could travel to the United States.
The circuit acknowledged the “frustration” of the parties:
The court, pursuant to Reynolds, dispensed with two fundamental protections for litigants, courts, and the public. First, the district court and the parties lost the benefit of an adversarial process, which may have informed and sharpened the judicial inquiry and which would have assured each litigant a fair chance to explain, complain, and otherwise be heard. See, e.g., Franks v. Delaware, 438 U.S. 154, 168 (1978) (“The usual reliance of our legal system on adversary proceedings itself should be an indication that an ex parte inquiry is likely to be less vigorous.”). Second, they lost the value of open proceedings and judgments based on public evidence. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (concluding that criminal trials are presumptively public and noting that “‘[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. . . . [W]hatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.’ 1 J. Bentham, Rationale of Judicial Evidence 524 (1827) (footnote in original, renumbered)).Doe, 576 F.3d at 107 (footnote omitted).
The Second Circuit also distinguished the Ninth Circuit case in Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. 2009), which was based on the claim of the state secrets privilege for information which was in the public record. Further, the circuit noted the case did not present the issue “whether and to what extent the government could validly refuse to grant the plaintiffs the access they sought to discuss, view, or record classified information not properly covered by an assertion of the state-secrets privilege.” Doe, 576 F.3d at 104.
All three branches of government have been active in considering the contours of the state secret privilege. The Doe case demonstrates a recent example from the judicial branch in which the civil plaintiffs were not allowed to participate in the process in which the decision was made concerning the application of the privilege and their case was dismissed based on the claim of privilege.