State Secrets Doctrine

Summary: Court challenges to government activities undertaken during the war on terror have repeatedly been thwarted by a legal doctrine known as state secrets. The doctrine is mostly based on an early Cold War case in the Supreme Court, US v. Reynolds, in which the Court ruled that the government did not have to produce documents that might reveal national secrets. The doctrine has been used to prevent lawsuits in cases involving the rendition of suspected terrorists by the CIA and in revealing details of secret wiretapping programs conducted by the National Security Agency. In 2010, the doctrine was challenged in Britain, where a three-judge panel released a summary of a secret CIA report on an alleged victim of torture despite the British government's insistence that doing so would endanger the UK's close intelligence-sharing relationship with the United States.

Legal challenges to government anti-terrorist activities since September 11, 2001, have generated about two dozen cases in which the government has successfully foreclosed litigation based on the state secrets doctrine—the doctrine that lawsuits cannot be heard in court because doing so would necessarily harm the government or threaten national security. Since 1953, the Supreme Court has repeatedly upheld the doctrine, effectively preventing challenges in court to government activities ranging from alleged illegal wiretapping and kidnapping to employment discrimination.

The state secrets doctrine is not based on legislation but on a 1953 Supreme Court decision, United States v. Reynolds. Since that case, the government has evoked the doctrine about seventy-eight times—fifty-five times between 1954 and 2001, and twenty-three times since 2001, according to a tabulation by the Reporters Committee for Freedom of the Press.

Cases the government prevented from being heard range from unfair dismissal and race discrimination at government agencies to anti-terrorist operations by the Central Intelligence Agency and the National Security Agency. Critics have complained that the doctrine has put government actions beyond judicial scrutiny; defenders say it serves the greater good by protecting sensitive operations from disclosure to the nation's enemies.

Among the most widely publicized cases involving the state secrets doctrine was a lawsuit filed by Khalid al Masri, a German citizen of Lebanese descent who sued former CIA director George Tenet, several unnamed CIA agents, and two private airline companies for their role in kidnapping Masri from Macedonia and transporting him to a secret prison where he alleged, he was tortured, and a lawsuit challenging a secret wiretapping program conducted by the National Security Agency (NSA), and in particular the cooperation of telecommunications companies in facilitating the agency's wiretaps.

In Reynolds, the government declined to hand over certain documents subpoenaed by the plaintiffs. Still, in subsequent cases, the government declared that even hearing a case would necessarily reveal state secrets. Both George W. Bush and Barack Obama administrations have held the position that to mount a defense in cases involving techniques used to combat terrorism would necessarily reveal state secrets.

Cases in which the government used state secrets to stop litigation include:

• Sibel Edmonds, a Turkish-American translator for the FBI whose 2002 suit for unfair dismissal was rejected by a federal district court judge in 2004 after the government claimed state secrets privilege. The FBI had confirmed some of Edmonds' allegations in briefings to Congress. Still, in May 2004, two years later, the Justice Department retroactively classified both briefings to Congress by Edmonds and by the FBI and insisted that members of Congress remove related documents from their Web sites. The state secret privilege was also used to bar Edmonds from testifying that the federal government knew in advance that Al Qaeda planned to use civilian airliners to attack the United States. That case was part of a $100-trillion ("t") suit filed by 600 relatives of 9/11 victims against the government of Saudi Arabia and several prominent Saudi citizens.
• Jeffrey Sterling, a Black American employed by the CIA as a Farsi translator, alleged in a suit against the agency that he was told he was "too big and Black" for some assignments. He also alleged that the CIA placed expectations on him "far above those required of non-African-American Operations Officers." The Supreme Court declined to review a lower court's dismissal of his case because although Sterling "could probably prove a prima facie case for race discrimination," his lawsuit could not be heard without revealing some details of his employment as an undercover employee.
• Maher Arar, a Syrian-born Canadian telecommunications engineer, was arrested in 2002 at Kennedy Airport in New York on a stopover during a flight back to Canada from Tunisia on suspicion of involvement in terrorism. Arar was flown to Syria, where he was held for ten months when he alleged torture. An extensive Canadian investigation cleared Arar of any involvement in terrorism. Arar later sued then-Attorney General John Ashcroft for damages for his role in the affair; the federal government successfully evoked the state secrets privilege in federal district court in refusing to reveal the reason for Arar's rendition, although the government acknowledged having seized Arar. The case was under appeal in October 2007.
• Khalid al Masri, a German citizen of Lebanese descent, was arrested in Macedonia and taken to Afghanistan for questioning. Like Arar, al Masri was eventually released, evidently the victim of mistaken identity. His case was investigated in Germany, which once issued arrest warrants for the CIA agents involved in his kidnapping, and by the European Union. On October 9, 2007, the Supreme Court declined to hear an appeal by al Masri of a lower court decision upholding the government's claim of state secrets, which resulted in the Court refusing to hear al Masri's case.
• Notra Trulock, a former intelligence officer for the Federal Energy Department, sued Wen Ho Lee for defamation because of Lee's claim that allegations against him were based on his Chinese ancestry. While working at the Los Alamos, NM, National Laboratory, Lee was accused of spying for China. Trulock alleged that Lee had defamed Trulock by falsely claiming that Trulock had based his accusations of Lee based on Lee's Chinese ancestry. Trulock's suit was dismissed in February 2002 by a federal circuit court in Virginia because allowing the suit to go forward would disclose national secrets. (Lee eventually pleaded guilty to improperly handling classified data but was cleared of all espionage charges; a federal judge apologized to the scientist for abuse of power by the federal government.)
• Hepting v. AT&T Corp. In January 2006, the Electronic Frontier Foundation sued AT&T, accusing the carrier of secretly routing Internet traffic through a special room at its San Francisco office where Internet traffic—including emails—could be copied and turned over to the government. The suit accused AT&T of facilitating these copies without a court-issued search warrant and of cooperating in indiscriminate surveillance of all Internet traffic (untargeted content) passing over AT&T's network, whether it came from terrorist suspects as part of the government Terrorist Surveillance Program. The suit also accused AT&T of sharing its database of calls made or received (but not their content) with the government as part of a secret data-mining program. AT&T argued in district court that the state secrets doctrine barred the plaintiffs from acquiring evidence that would prove their case and that AT&T could not defend itself. The federal government filed a brief supporting AT&T. In July 2006, the district court rejected AT&T's claim. Pending an appeal in 2008, Congress passed the FISA Amendments Act (FISAAA) of 2008 to end the Hepting case. The FISAA allowed the US Attorney General to insist on the dismissal of lawsuits against telecommunications companies if the government secretly verifies that the surveillance did not occur or if the president authorized it. Based on the 2008 law and a certificate filed on behalf of AT&T, federal district court judge Vaughn Walker dismissed the Hepting case and dozens of similar cases in 2009. The Electronic Freedom Foundation filed an appeal, which was still pending in early 2010.
• Binyam Mohamed. In the United Kingdom, which has cooperated closely with American intelligence agencies, the state secrets doctrine was rejected for the first time in a widely publicized case decided in February 2010. Three of Britain's most senior judges, ruling in the case of Binyam Mohamed, declared that the state secrets doctrine could not be used to hide wrongdoing by government officials. Mohamed was an Ethiopian native and resident of Britain who was arrested in Pakistan in 2002 and held by the United States as a suspected terrorist for the next seven years. During that time, Mohamed has alleged he was tortured by Americans and interrogators at a secret prison in Morocco acting in concert with British agents. In 2009, the British Foreign Office asked the courts to remove a twenty-one-line paragraph in a judge's ruling (in a lawsuit filed by Mohamed's lawyers demanding information about his treatment). The section summarized a secret CIA report that disclosed that Mohamed had been subjected to "continuous sleep deprivation threats and inducements," among other treatments. The government argued that disclosing that paragraph would jeopardize Britain's long-standing close ties to American intelligence agencies, which had threatened to stop supplying secret documents if the secret information were made public. The British government said it was following the "control principle," under which only the agency providing information—in this case, the CIA—could agree to make it public. In a widely noted decision in February 2010, a panel of three of Britain's most senior judges ruled that "in principle, a real risk of serious damage to national security, of whatever degree, should not automatically trump a public interest in open justice when it concerned UK knowledge of unlawful interrogation techniques used by US officials." The judges said the "control principle" could not be applied if it were used to hide information that "those for whom the executive in this country is ultimately responsible (i.e., government agents) were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture." The Mohamed case raised controversy in the United States after it was shown that officials of the Obama administration had insisted that the CIA information about torture remain secret as a matter of national security, a position seemingly directly at odds with Barack Obama's vows on the topic as a presidential candidate.
• Further Cases. In the early 2020s, two cases—Federal Bureau of Investigation v. Fazaga and United States v. Zubaydah—involving the state secrets defense were heard by the US Supreme Court. In Federal Bureau of Investigation v. Fazaga, the Court unanimously found that the Foreign Intelligence Surveillance Act (FISA) does not take precedent over the state secrets defense. In United States v. Zubaydah, the Court ruled that the state secrets privilege applies to all trial discovery requests pertaining to the CIA detention sites in Poland, which could confirm or deny the existence of such sites.

Origins of the Doctrine

United States v. Reynolds (1953)

In 1948, an Air Force bomber on a secret mission crashed, killing its three crew members. Their widows sued the government and demanded the Air Force's accident reports. The Air Force refused to hand over the reports, insisting they contained information about the plane's secret mission, including details about secret electronic equipment on board. The Supreme Court upheld the Air Force's refusal without examining the documents, establishing the state secrets doctrine.

In 2003, the documents initially requested in Reynolds were declassified and found to contain no secret information. Critics of Reynolds and the state secrets doctrine insist that the entire principle was based on what amounted to lies by the government in the original case.

Nevertheless, the Reynolds case continues to be cited as a precedent in blocking lawsuits opposed by the government. Critics have said that whereas in the original case, only specific documents were barred—not the entire case—the doctrine has been expanded under the war on terror to block lawsuits in their entirety from proceeding, with or without secret documents.

The Totten Doctrine

Totten v. United States (1876)

In addition to the Reynolds case, an 1876 Supreme Court ruling in Totten v. United States has often been cited as a rationale for preventing government secrets from being disclosed in court, especially in cases involving clandestine services (such as the CIA). The Totten case involved a suit by the estate of William A. Lloyd, who had agreed to serve as a Union spy for $200 a month. He was never paid, and the administrator of his estate, Enoch Totten, sued the federal government.

Refusing to hear Totten's suit on behalf of Lloyd's estate, the Supreme Court ruled that the president had the right to enter into a contract for clandestine services and that working under such an agreement implied that the contract would remain secret. "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, and respecting which it will not allow the confidence to be violated," the Court ruled.

Subsequently, the government successfully invoked the Totten Doctrine in cases unrelated to spying under contract. A peace group in Hawaii (Weinberger v. Catholic Action of Hawaii/Peace Education Project, 1981) demanded that the US Navy file an environmental impact statement before building storage bunkers for nuclear weapons; the government insisted such facilities were state secrets. In Kasza v. Browner (1998), former Air Force employees claimed that the Air Force violated federal environmental guidelines in transporting and burning hazardous materials in Area 51—a secret Air Force facility in Nevada. The Air Force successfully invoked the Totten Doctrine to insist the suit be stopped because it might disclose state secrets.

Bibliography

Elsea, Jennifer K., and Edward C. Liu. "The State Secrets Privilege: National Security Information in Civil Litigation." Congressional Research Service, 28 Apr. 2022, crsreports.congress.gov/product/pdf/R/R47081. Accessed 3 Oct. 2023.

Fisher, Louis. "The State Secrets Privilege: Relying on Reynolds." Political Science Quarterly, vol. 122, no. 3, 2007, p. 24. search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=26502864&site=isc-live

Weaver, William G., and Robert M. Pallitto. "The Law: 'Extraordinary Rendition' and Presidential Fiat." Presidential Studies Quarterly, vol. 36, no. 1, Mar. 2006, p. 15. search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=19630243&site=isc-live

"Whistleblowers Silenced by State Secrets Doctrine." CQ Researcher, vol. 15, no. 42, 2 Dec. 2005, pp. 2-3. search.ebscohost.com/login.aspx?direct=true&db=tsh&AN=19232322&site=isc-live