Gavin R. Putland,  BE PhD

Saturday, March 10, 2007 (Comment)

Secrets about the State Secrets Privilege

The administration of George W. Bush is facing multiple lawsuits from persons claiming to have been wrongfully detained, deported, and tortured, but so far has managed to have the suits dismissed by claiming that litigation could result in disclosure of classified information.

There are four things wrong here.

First, if the litigation of a suit against the government would reveal a state secret, the government can protect its secret simply by settling the claim out of court. If the suit is dismissed, the only additional benefit for the government is the avoidance of a compensation payout. Therefore, if the government tries to have the suit dismissed, its true motive must be to avoid paying compensation, not to protect a state secret. The desire to avoid paying compensation is not a valid ground for even a temporary stay of proceedings, let alone a permanent stay.

Second, if a man sues the government for wrongful detention, and if it is proven or conceded that he was at least detained, then the onus is on the government to show cause for his detention. If the government instead requests dismissal of proceedings, it has simply failed to show the necessary cause, in which case the court must then decide how much compensation should be awarded for wrongful detention. The reason why the government has declined to show cause is irrelevant — the more so if the government's motive is to protect state secrets, because the summary decision in favor of the plaintiff does not reveal any state secrets!

Third, if it were true (which it isn't) that the plaintiff's claim could not be entertained in any way without airing state secrets in court, it would still be possible to protect the secrets by means of closed courts, security-cleared judges, and (if needed) security-cleared jurors. If such arrangements would require special consent from the plaintiff, so be it. If the necessary procedures were not available, it would be incumbent on the legislative branch to make them available — as it has already done in respect of court orders for surveillance under the Foreign Intelligence Surveillance Act.

Fourth, the case cited as the precedent for the State Secrets Privilege, namely United States v. Reynolds (U.S. Supreme Court, 1953), is inapplicable to the recent lawsuits against the Bush administration in the following ways:

  1. In Reynolds, the government eventually settled out of court, and never tried to have the case dismissed, but offered to make its personnel available without cost to the plaintiffs, to testify on all non-classified matters. The plaintiffs rejected this offer and demanded that the government hand over particular documents. In the Supreme Court's view, the government's willingness to produce witnesses "greatly minimized" the necessity to produce the documents sought by the plaintiffs. This was critical to the court's decision not to compel production of those documents.
  2. In Reynolds, the onus was on the plaintiffs to prove negligence, not on the government to justify its treatment of the plaintiffs.
  3. In Reynolds, the Supreme Court did not entirely rule out examination of allegedly privileged evidence by the judge in chambers in order to determine if it really contained classified information. The court merely found that such examination was not (yet) appropriate in the case before it. "In each case," the Justices wrote, "the showing of necessity... [of producing allegedly privileged evidence] will determine how far the court should probe in satisfying itself that the occasion for invoking the [state secrets] privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake... [W]here necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail." Notice that the Justices did not say "how far the court should probe" in order to be "ultimately satisfied that military secrets are at stake" in the event of "the most compelling necessity". And because the case was settled out of court soon afterwards, this question was not further examined.

Reporting of the Reynolds case by progressives has tended not to acknowledge that the government eventually settled the case out of court and never tried to have it dismissed. While such reporting may make the Reynolds precedent look bad — and, by association, make the Bush administration look bad — it also plays into the hands of the Bush administration by making the precedent seem stronger and more relevant than it is.

Progressives, instead of attacking the Reynolds precedent, should be explaining what it really means. And lawyers for the victims of the current administration, instead of debating whether litigation would really endanger national security, should be pointing out that both the administration and the courts can grant relief to the victims without further litigation.

[Reposted June 26, 2012. See also "Nailing down the State Secrets Privilege".]

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