The State Secrets Problem: Can Congress Fix It?
Volume 80, No. 2, Summer 2007
By Neil Kinkopf [PDF]

Imagine that a United States citizen, in a case of mistaken identity, is arrested while walking down the street and sent off to a black site run by the Central Intelligence Agency (“CIA”) in Afghanistan. The citizen is interrogated, given mind-altering drugs, and subjected to beatings, waterboarding, and other forms of torture or cruel, inhuman, and degrading treatment. Finally, the CIA determines that it has the wrong person, so the person is sent back to the United States and left at the spot where he was first picked up. What legal recourse does such a person have? The person’s legal rights–constitutional and statutory–have been egregiously violated. Nevertheless, because of the state secrets privilege, there is little chance of securing any redress through the courts.

The scenario set forth above is only barely hypothetical. Khaled El-Masri alleged essentially these facts in his lawsuit against the United States and various federal officials. The district court dismissed El-Masri’s lawsuit on state secrets grounds, and the Fourth Circuit affirmed. The state secrets privilege is a common law evidentiary privilege that allows the government to withhold information, the disclosure of which would harm national security. The modern articulation of the state secrets privilege is found in United States v. Reynolds. Reynolds sets forth a three-part framework for assessing state secrets privilege claims. First, the claim must be made in a way that comports with procedural requirements; second, the court must determine whether the information that the government seeks to protect is in fact privileged; third, the court must determine how to proceed if the information is in fact privileged.

Substantively, the privilege allows the executive branch to withhold information when there is a “reasonable danger” that disclosure would expose secrets that, “in the interest of national security, should not be divulged.” In determining whether the assertion of privilege is valid, the court may conduct an in camera examination of the information sought. The court, however, does not necessarily examine the information. If, without examination, the court is satisfied that the information sought contains military or other covered secrets, it may simply accept the explanation of the executive branch. Before accepting this explanation, however, the court must conclude that the question of privilege cannot be resolved without “creat[ing] an unacceptable danger of injurious disclosure.”

In determining whether disclosure risks exposing state secrets, the courts tend to be highly deferential to the determination of the executive branch, mainly out of respect for the greater institutional competence of the executive branch as compared to the courts in making such national security judgments. Remedially, the courts have a fair degree of discretion as to what course to pursue if they determine that the executive branch has validly invoked the state secrets privilege. The increasingly common remedy chosen by courts, including the court in El-Masri v. United States, is dismissal. A court will dismiss a case involving state secrets if “the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information’s disclosure.”

Our hypothetical lawsuit would be subject to a number of state secrets privilege objections. First, the government could claim, as it did in El-Masri, that litigating the case would reveal how the government “organizes, staffs, and supervises its most sensitive intelligence operations.” Second, the claim inevitably involves the question of what interrogation techniques were actually used and what techniques were authorized. These techniques are considered state secrets because their disclosure would allow enemies to prepare for them should they be captured. Third, the location of the facility where the plaintiff was held is also a state secret. When the executive branch plausibly raises such claims, it is not uncommon for the court to dismiss the entire lawsuit.

The reason the courts employ the remedy of dismissal is fairly straightforward. The state secrets privilege is meant to protect the fundamentally important interest in national security from impairment by disclosure of sensitive information. The problem with the state secrets privilege, as it has been developed by judges, is that it frequently fails to consider or pay more than lip service to two competing interests. First, the way the courts have applied the state secrets privilege overlooks fundamental individual rights–in the hypothetical case, the liberty interest to be free from unlawful detention and from abusive treatment. The famous formulation from Marbury v. Madison states:

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.
. . . .
The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. As this language suggests, the denial of a remedy also strongly implicates rule of law values. If an individual such as I have hypothesized cannot maintain a lawsuit against the government or its officials, how can the executive branch be held accountable to the rule of law?

This problem of governmental accountability leads us to the basic defect of the state secrets privilege as it has been judicially developed. The privilege does not balance the competing interests. In fact, this feature of the state secrets privilege is express. If the information that the executive branch wishes to withhold is covered, the privilege is considered to be absolute. Unlike other governmental privileges, such as the presidential communications privilege, it is not qualified and subject to balancing against competing interests.

Several factors exacerbate the absolute standard’s potential for harmful consequences. First, the scope of information covered by the privilege has been given an extremely broad reading. Overclassification of government information is a well-known problem. Furthermore, the so-called mosaic theory extends coverage to a vast array of innocuous information. Mosaic theory holds that “hostile intelligence agencies can piece together puzzles from smaller bits of information.” While this theory is sound in some instances, it is easily abused and overapplied. The second problem of the absolute approach to the state secrets privilege is that it fails to appreciate the real potential for abuse. The Reynolds case itself is an example. We now know that the information the government sought to withhold (accident reports of a fatal military plane crash) contained evidence of negligence but no state secrets at all. More recently, we have been reminded of the potential for rampant, inadvertent abuse that secrecy creates by the report of the Inspector General on the Federal Bureau of Investigation’s (“FBI”) abuse of the national security letter authority.

Finally, the absolute approach is in some tension with the most recent cases dealing with the scope of executive power in the context of the war on terror. For example, in Hamdi v. Rumsfeld, the President asserted his role in safeguarding national security to support the program of designating enemy combatants and holding anyone so designated–including U.S. citizens– incommunicado and indefinitely, with no process or review beyond the initial designation. The Supreme Court rejected the President’s assertions of unreviewable authority and instead subjected his claims to a balancing test. Most remarkably, the balancing test that Justice O’Connor employed in her plurality opinion was the garden variety due process balancing test exemplified by Mathews v. Eldridge, a case dealing with the denial of social security disability benefits. Indeed, she explicitly balanced liberty concerns with her assessment of the weightiness of the national security concerns raised by the President. In doing so, Justice O’Connor emphasized: “Nor is the weight on [the liberty] side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior . . . .” It is hard to square Hamdi with an approach to state secrets that absolutely privileges any information that has only a remote potential impact on national security.

That said, there is a common trait between the state secrets cases and Hamdi. In each of these instances, the courts are reticent to get deeply involved. All of these cases express an appropriate preference for the issues to be dealt with by politically accountable and institutionally more competent branches. In other words, the courts do not want to impose themselves where Congress has not provided guidelines. I regard this reticence as appropriate because, under our constitutional system, questions involving tradeoffs between security on the one hand and liberty and the rule of law on the other are fundamentally policy decisions to be made by accountable representatives through the deliberative process of bicameralism and presentment set forth in the Constitution. Beneath this process, of course, is a bedrock of constitutional law, and it is the Court’s role to enforce constitutional protections, particularly where the political branches have failed to enact statutory protections.

Read Article…