The Bush Administration has been widely criticized for its assertion of the state secrets privilege to prevent litigation that would otherwise subject some of its most notorious executive actions to judicial review. Whenever suits have been brought to challenge aspects of its warrantless surveillance program or its program of extraordinary renditions, the Justice Department has interposed the objection that the suit cannot proceed because doing so poses a “reasonable danger” of exposing “matters which, in the interest of national security, should not be divulged.” That is how the Supreme Court put the relevant question in the seminal state secrets case, United States v. Reynolds. The privilege can be waived by the executive branch, but once it has been asserted and the court has been persuaded that disclosure poses a danger to the national security, no amount of urgency or necessity on the other side can outweigh it. So the privileged information gets excluded from the litigation. The plaintiff can attempt to proceed on the basis of non privileged information, but if the privileged information is so important to the plaintiff’s case that he cannot prove his case without it – or if it is so central to a defense that might be offered – the case gets dismissed. This is just what happened in Mohamed v. Jeppesen Dataplan, the case that was argued before the Ninth Circuit court of appeals last week. Mohamed and five other plaintiffs had been seized by American personnel, forcibly taken to nearby airports, stripped, dressed in diapers and jumpsuits, blindfolded and shackled to the floor of a Gulfstream V — apparently the same Gulfstream V in each case. That Gulfstream V, jokingly referred to by a Jeppesen employee as the “torture plane,” provided material assistance in an operation that subjected each plaintiff to harsh incarceration and torture in a destination country, and it was on the basis of that knowing assistance that the plaintiffs sued Jeppesen Dataplan. At least, these are the allegations. In this suit for damages, neither Jeppesen nor the United States has ever answered the allegations because the United States succeeded in having the case dismissed by the district court, on the ground that the case could not be litigated without disclosing state secrets.
It is clear that progressives believe that the Bush administration has been abusing the state secrets privilege to avoid accountability and hide embarrassing facts. Oral argument in Jeppesen, on February 3, was to provide an early signal on just how much change to expect from the Obama Justice Department. But the government’s lawyer told the panel that the administration was not changing its position at all in the case, and was still urging the appeals court to affirm the district court. In the midst of the disappointment, it is fair to ask the question: just what should progressives have been expecting?
The question is important because “abusing” the privilege, or using it too much, can mean a number of different things. Here are four ways that the Obama administration might change the frequency with which the privilege is used, together with some of the questions each one raises, both generally and in the particular context of the Ninth Circuit argument in Jeppesen:
- Abandon the privilege. Some people favor getting rid of the privilege entirely. It is highly unlikely that any administration would take this route. Very few people – and even fewer presidents, who are charged with maintaining the national defense on our behalf – are likely to conclude that this is a good idea. The privilege essentially emanates from the belief that there are some occasions when the needs of our collective security outweigh the harm done to any particular plaintiff by preventing him or her from having a day in court, and that idea seems correct. So some version of the state secrets privilege is going to endure.
- Waive the privilege in some cases. In the hands of the court, the privilege is absolute, meaning that the court will not try to evaluate the competing costs and benefits of sustaining the privilege. But that does not stop the executive branch from deciding that even though it had valid grounds for asserting the privilege, it was going to waive the privilege. It could do this simply by not raising it in any particular case. This is possible, but complicated. The idea of a waiver assumes that the executive branch has concluded that disclosure does in fact pose a “reasonable danger” of harming the national security. One of the government’s assertions in Jeppesen Dataplan, for instance, is that officially acknowledging that other countries took one of the plaintiffs from us and subjected them to torture risks undermining future cooperation between us and another country whose assistance we may need for some other mission later. If intelligence and military analysts genuinely believe that this risk is real, should a president nonetheless waive his ability to protect that information from disclosure? Advocates for the plaintiffs may well think this is a risk worth taking because the ability of the plaintiffs to redress their grievances and of need of the public to know what their government is doing are the more compelling interests. One of our best attorneys general, Ed Levi, delivered a famous speech in 1975 before the City Bar of New York noted the tension between the demands of transparency and disclosure versus the need to keep some confidences in order to be effective in discharging the government’s responsibility for the security of the nation. He termed it “a conflict of values.” Conceivably, the new Obama folks at the Justice Department looked at the concerns raised by the intelligence community about disclosing further details of the renditions of the plaintiffs in Jeppesen and concluded that the risks were quite serious. If those were the circumstances, it is hard to say they were clearly wrong in refusing to waive the privilege.
- Reevaluate the security risk. Subtly but importantly different than waiving the privilege, the incoming administration might look at some of the pending cases in which the privilege has been asserted and conclude that there is no “reasonable danger” of harming national security. When people raise concerns about the outgoing administration “abusing” the privilege, or when the ACLU in particular asserts that the Bush Administration is “us[ing] false claims of national security to dodge judicial scrutiny of extraordinary rendition,” this is the possibility they may have in mind. It is the possibility that disclosure does not in fact present any appreciable risk of harming national security and yet the government is asserting the privilege anyway. Invoking the privilege where it is not warranted smacks either of cover-up or of acting irresponsibly. The difficulty with this option, of course, is that although there may be a suspicion that the privilege has been invoked in some cases to avoid embarrassment or worse, and not to avoid harming national security, in the first instance it is only the incoming administration who can make that judgment. Only it has access to the information and hence only it has the ability initially to assess the consequences of disclosure. In particular, without access to the classified information the United States has submitted to the court to defend its assertion of privilege in Jeppesen, we cannot evaluate whether the privilege has been justifiably invoked in that case or not.
- Advocate changes in when the privilege warrants dismissal. In Jeppesen, the plaintiffs don’t deny that there are legitimate uses of a state secrets privilege and they don’t even differ very much in their statement of state secrets legal doctrine. They do strenuously disagree, however, with the criteria a court should use in determining whether or not an entire case should be dismissed because some evidence that would be relevant and helpful to the plaintiff making his case (or the defendants mounting a defense) is legitimately protected from disclosure on state secrets grounds. The plaintiffs contend that the program of extraordinary renditions has been publicly acknowledged by the President, the Secretary of State and the Director of National Intelligence, among others, and also has been the subject of official investigations by European governments. Because of this, they think the litigation can go forward without risking disclosure of still secret information that risks harm to national security. The government on the other hand, following El-Masri v. United States, a decision out of the Fourth Circuit dealing with a nearly identical extraordinary rendition suit, argues that the particulars of the specific renditions of the Jeppesen plaintiffs remain secret, and it is the disclosure of these particulars that should matter in determining whether the suit can be maintained or not. The government could draw back from the El-Masri position and permit the lawsuit to proceed, waiting to raise state secret objections once the plaintiffs get further into the lawsuit and begin to make requests for specific documents, testimony or other evidence. Had this option been pursued, its immediate effect in Jeppesen would have been for the government to join the plaintiffs in suggesting error in the court below, sending the case back for further proceedings, including at least the beginnings of discovery. This certainly would have been a cosmetic change and press coverage of the argument would have been markedly different. It is hard to say, however, whether the change would have been more than cosmetic, because it is not clear whether the plaintiffs actually can make out a case against the defendants without delving into matters that are still secret, such as the terms of the arrangement between Jeppesen Dataplan and the CIA, the knowledge that Jeppesen employees and the CIA had of interrogation conditions in other countries, and how they knew it, and the interrogation techniques themselves. It is quite conceivable that revealing such information might raise dangers for national security by revealing the sources, means and methods of intelligence gathering and clandestine operations. If that is so, then the case would run into the state secrets brick wall eventually and would have to be dismissed. Giving the plaintiffs a further chance to see if they can make out a case that avoids that brick wall might only be postponing the inevitable, but it might also signal at least a modest shift in the direction of transparency and accountability.
Tags: state secrets, Transparency
