Silencing Justice

By Erwin Chemerinsky

      The government should not be able to break the law and avoid accountability by claiming that litigation must be dismissed because the suit involves state secrets. But that is exactly what recent appellate court decisions provide. There are many ways of dealing with classified information in court; dismissal of cases is unnecessary and undesirable.
      For example, in El-Masri v. United States, 479 F.3d 296 (4th Cir.), cert. denied, 128 S.Ct. 373 (2007), the court of appeals upheld the dismissal, based on the state secrets doctrine, of a suit by an individual who claimed to have been kidnapped and tortured in a CIA rendition camp. Khaled El-Masri, a German citizen of Lebanese descent, alleged that he was apprehended while in Macedonia and then taken to a rendition camp in Albania where he was tortured. He said that he was then dumped on the streets of Albania.
      El-Masri sued, but the district court dismissed based on the state secrets doctrine. Under the state secrets doctrine, the United States may prevent the disclosure of information in a judicial proceeding if "there is a reasonable danger" that such disclosure "will expose military matters which, in the interest of national security, should not be divulged." United States v. Reynolds, 345 U.S. 1 (1953).
      Reynolds, the leading decision on the state secrets privilege, involved a suit by the surviving relatives of civilians who were killed while onboard an Air Force B-29 bomber that crashed during testing of secret electronic equipment. The court sustained the Air Force's refusal to disclose the documents sought by the plaintiffs, concluding that the officials involved had properly invoked the "privilege against revealing military secrets."
      El-Masri argued that the facts of the rendition camps are public and well known, and therefore the state secrets doctrine should not apply. The 4th Circuit rejected this argument and said that inevitably, state secrets would be relevant. The court explained: "To establish a prima facie case, [El-Masri] would be obliged to produce admissible evidence not only that he was detained and interrogated, but that the defendants were involved in his detention and interrogation in a manner that renders them personally liable to him. Such a showing could be made only with evidence that exposes how the CIA organizes, staffs and supervises its most sensitive intelligence operations."
      Moreover, the court said even "if El-Masri were somehow able to make out a prima facie case despite the unavailability of state secrets, the defendants could not properly defend themselves without using privileged evidence."
      In other words, even though El-Masri alleged that he was kidnapped, beaten and tortured in violation of U.S. and international law, the case was dismissed because it might raise information that includes state secrets. El-Masri sought review in the U.S. Supreme Court, and his case provided an excellent vehicle for clarifying and limiting the scope of the state secrets doctrine. Unfortunately, the court denied review.
      Recently, the 9th Circuit invoked the state secrets doctrine to rule against a claimed violation of constitutional rights, though the court left open the possibility that the suit still could go forward.
      In Al-Haramain Islamic Foundation, Inc. v. Bush, WL3407182 (9th Cir. Nov. 16, 2007), an Islamic foundation alleged that it had been the target of warrantless wiretapping as part of the federal government's terrorist surveillance program. The foundation argued that the warrantless eavesdropping violated both the Constitution and the Foreign Intelligence Surveillance Act.
      The 9th Circuit held that the foundation lacked standing to bring the suit. The court said that the only way for the foundation to show that it was subjected to surveillance - and thus injured - was through use of a sealed document that was protected by the state secrets doctrine. The court concluded "that the sealed document is protected by the state secrets privilege, along with the information as to whether the government surveilled Al-Haramain."
      Although the court said that it was "not to accept at face value the government's claim or justification of privilege," it then declared "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."
      This latter language is the most revealing in the entire opinion. Even a panel that was clearly more liberal than conservative - Judges M. Margaret McKeown, Harry Pregerson and Michael Daly Hawkins - still found it necessary to emphatically declare the need to defer to the executive branch of government.
      The court did, however, leave open the possibility that the plaintiff still could prevail. The 9th Circuit explained that the state secrets doctrine is a common law principle. Statutes, of course, can override common law. The 9th Circuit remanded the case for the district court to determine whether the provisions of the Foreign Intelligence Surveillance Act, which regulates eavesdropping for foreign intelligence purposes, preempts the common law state secrets doctrine.
      This could provide a way around the application of the state secrets doctrine in cases where there is a statute on point, but it would not keep the government from being able to generally avoid liability by saying that the case involves state secrets.
      Both El-Masri and Al-Harmanian raise the profoundly important question of whether the government can use the state secrets doctrine to preclude judicial review and accountability. The state secrets doctrine is found neither in the Constitution nor in any federal statute. Yet, the courts of appeals have said that it can be used to require dismissal of constitutional claims.
      The leading Supreme Court decisions about the state secrets doctrine are about it being a discovery privilege that limits what the government must disclose. Cases like the 4th Circuit's decision in El-Masri take it much further and mandate dismissal of cases that implicate state secrets.
      Moreover, the state secrets doctrine is unnecessary. The courts invoking the state secrets doctrine present a false choice between risking revelation of classified information or dismissing the suit.
      There is another alternative: Allow the suit to go forward, but with strict restrictions on access to and use of the evidence, especially in open court. The Classified Information Protection Act was adopted so that the government would not have to choose between foregoing criminal prosecutions or risking classified information.
      As the 9th Circuit explained, "Congress passed CIPA to prevent the problem of 'greymail,' where defendants pressed for the release of classified information to force the government to drop the prosecution." United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988). CIPA establishes a comprehensive procedural framework for the discovery and admission of classified documents in a criminal prosecution.
      CIPA has worked effectively in criminal cases and Congress should create a comparable statute to allow civil suits to go forward.
      But even without that step, courts can fashion procedures to protect classified information so that the government cannot escape accountability for its unconstitutional acts.
      If the government breaks the law, it should be subject to suit to compensate individuals, deter future wrongdoing and stop the illegal conduct. The state secrets doctrine should not provide a shield that allows the government to violate the law with impunity.
     
      Erwin Chemerinsky is Alston & Bird Professor of Law and Political Science at Duke University.