Ninth Circuit State Secrets Case:

I had the chance to watch the oral arugment before the U.S. Court of Appeals for the Ninth Circuit in one of the FISA/state secrets cases over the weekend (the Al-Haramain Islamic Foundation case, available on C-Span here). My reaction to the oral argument (not having read the briefs) is that the Justice Department's claim that the state secrets doctrine precludes further proceedings before the district court was particularly weak.

While the government would like to argue that allowing the case to proceed would threaten national security, I thought that the opposing attorney effectively rebutted the claim, pointing out that the alleged rationales for the doctrine do not apply in this case. For instance, one argument for the doctrine is that the disclosure of foreign intelligence activities is that the potential subjects of surveillance will alter their behavior, thereby undermining foreign intelligence efforts. In this case, however, the plaintiffs already believe that they were surveiled, because the government accidentally gave them a confidential document, and this is now public information. So, the subjects of the surveillance have already altered their behavior -- the damage has been done. Therefore, it seems to me, that even if one believes in a fairly robust state secrets doctrine, it does not seem to apply here.

I am not an expert on the state secrets doctrine, by any means, and there may well be more to the government's arguments in this case. That said, from what I saw in the oral argument, it seems that the government should lose, and the case should continue in the district court. Am I mistaken?


I haven't had time to watch the arguments or read the briefs, but I don't understand the relevance of whether this particular set of plaintiffs claims to have changed their behavior. Why would that matter? The issue is whether litigation would disclose how to circumvent monitoring based on the details of how the monitoring occurs; the issue is telling the bad guys exactly what the govt is doing so the bad guys can work around it. Surely a particular plaintiff can't get around the state secrets doctrine by unilaterally changing just *his* behavior.
8.20.2007 1:56pm
Jim Tyre (mail):

Only Jonathan can say what he meant; but I don't equate "subjects of surveillance" (his words) with "plaintiffs" (yours).
8.20.2007 2:16pm
Ah, I see the ambiguity. If the claim is that the details of the NSA's surveillance methods are already known by Al Qaeda, such that they have changed their practices to avoid monitoring, I would be interested to hear the plaintiff's support for that claim.
8.20.2007 2:47pm

Why do you effectively change Jonathan's "the plaintiffs already believe that they were surveiled" to "the plaintiffs already believe that they know exactly how they were surveiled" in order to arrive at your claim that "the issue is telling the bad guys exactly what the govt is doing so the bad guys can work around it"?
8.20.2007 2:57pm
Just an Observer:
In this particular case, as I understand it, the plaintiffs are not seeking to challenge or obtain discovery about the entire "TSP" program, only the alleged surveillance of themselves. So I don't see how they have to prove anything about how "al Qaeda" in general is behaving.

Uniquely among the current cases about warrantless surveillance, this one is brought directly under the civil remedies of the FISA statute itself. The plaintiffs claim that they are "aggrieved" under the statute because they were actually surveilled, and that they were surveilled without a court order.

However, the state secrets doctrine is a strong bulwark for the government, and I would not venture to predict that the plaintiffs ultimately can prevail here. There is much from Catch 22 and Alice in Wonderland already blessed by courts.

In both this case and Hepting, I gather that the Ninth Circuit judges don't like the doctrine very much, but would have a hard time assaulting it directly. However, DOJ is pushing to extend the limits of the doctrine somewhat. That might night fly either. Both cases seem likely to percolate to the Supreme Court.
8.20.2007 4:25pm
BruceM (mail) (www):
I happened to watch the oral arguments on CSPAN too (was channel surfing and came across it) and I completely agree with your assessment.
8.20.2007 5:31pm
Dilan Esper (mail) (www):
I don't think Professor Adler is wrong. I should add as well that there's a real problem with applying the state secrets doctrine at all to intentional acts alleged to violate the Constitution.

The state secrets doctrine has two components. First, it can bar discovery of state secrets in a civil case. That's straightforward enough. The second is that it can bar prosecution of a claim where the claim will necessarily expose state secrets. That is what is at issue here.

The two paradigmatic situations in which the state secrets doctrine can bar a cause of action are: (1) a secret agent suing the government for breach of the employment contract (I believe the main case on this was named "Totten", from Abraham Lincoln's time), and (2) a claim for negligence against the government in the operation of a secret program (the main case on this was the "Reynolds" case, from the Cold War).

In situation (1), the government can't defend the action without disclosing that the plaintiff was an agent and compromising the espionage program he or she was in. In situation (2), the government is conducting lawful activity, in secret, fouls up, and can't defend the lawsuit without revealing the lawful secret activity.

But this is different. Here, the claim is that the government is deliberately conducting activity that is alleged to be unlawful. There are at least 2 strong arguments why there should not be a state secrets dismissal here. First, as a practical matter, if the government can assert state secrets here, it means that the goverment can always violate the law or the constitution, as long as it classifies the program. That can't be right, and neither Totten or Reynolds says it is. Second, there's a big difference in terms of the degree of offense between negligently violating the law, or deliberately breaching a contract, and deliberately violating a congressional statute or the Constitution. It's much more dangerous to extend the state secrets doctrine to the latter situation.
8.20.2007 5:57pm
What I don't understand, having listened to the Government's argument, is what role it believes the judiciary plays in determining whether the Government has validly asserted the privilege. The Government kept claiming that the judiciary had a role, but that it should heavily defer to the Government's affidavit that the litigation would harm national security. But as both Pregerson and McKeown noted, the Government is really asking for absolute deference. The question I'd like asked is, from the Government's perspective, under what scenario could a court reject the Government's claim of state secret? In other words, if the district court is reviewing the Government's affidavit and the Government claims state secrets would be revealed in the course of the litigation, under what scenario could the district court not believe the affidavit? Or do we just have to "trust" the good-faith of our Government?
8.20.2007 6:24pm
cboldt (mail):
The government claims that the NSA activity was legal (or at least constitutional), so the "coverup of illegal activity " paradigm isn't uncontested.
Look to the remedies the Court has at its disposal. In Reynolds, the government simply refused to provide the documents. The Court treated that as an admission of negligence on the part of the government, and the injured plaintiffs settled before the case went to the jury.
In Totten, the agent lost his claim, because the contract couldn't be acknowledged.
In the NSA case, it's a battle of guts. While ostensibly, the government is supposed to provide the material to the Court so the Court can sift the "state secret" material from the "harmless to release" stuff, that paradigm does not work when the secret is a matter of government policy, rather than a matter of a single (or small group) of plaintiffs.
What can the Court do if the government simply refuses to acknowledge or deny policy, beyond what appears in the newspapers?
8.20.2007 7:06pm
Dilan Esper (mail) (www):

I did not rest my distinction on whether the activity is actually illegal. Rather, it is on the fact that the claim is that the policy itself, deliberately engaged in, constitutes a violation of the law. In other words, it is alleged to be an "intentional tort" in the sense of intending to cause the effect, not intending to violate the law (necessarily). Thus, it is more grave than a negligence or breach of contract allegation. And if the state secrets doctrine applies here, the government can avoid the limits of the law simply by classification. That was not an issue in Totten or Reynolds.

(By the way, I believe you are wrong on Reynolds. The Plaintiffs lost and never saw the documents, which were declassified in 2000 and found to contain no legitimately secret information. They simply evidenced that the goverment was negligent and the government didn't want to turn them over because they might help the Plaintiffs' case.)

I should add that although I did not address this, I don't believe that it is necessarily true that you need to reveal the state secret to litigate the case. For one thing, the case could be litigated on stipulated facts, or the government can provide the classified information about how the program works in camera, or the courts can issue an opinion as to whether the program is constitutional if the plaintiff's allegations are taken as true, and then the government can decide whether to contest those factual allegations.

The bottom line is what the government is really trying to do here is to create a privilege to violate the law, if they choose, so long as the program is classified. The state secrets privilege has never been construed this way.
8.20.2007 8:15pm
cboldt (mail):
-- I believe you are wrong on Reynolds. The Plaintiffs lost and never saw the documents --
There is more than one case in the same underlying action.
There was the damages case, which concluded with the widows reaching a settlement.
There was also a "release the documents" case, where the documents were to have been used to establish (or not) negligence in the damages case. You are correct, in the "release the documents" case, the government prevailed, and the documents were not released. This absence of release had a definite effect on the damages case.
The effect it had may surprise those who look it up.
8.20.2007 8:25pm
Jonathan H. Adler (mail) (www):
Orin, et al. --

Let me try and clarify. Based on my viewing the oral argument in the Al Haramain Islamic foundation case, it seemed that the government's state secrets argument had problems particularly because some of the relevant classified information had already been disclosed, albeit inadvertently, by the government. The government goofed -- it let Al Haramain learn something it should not have known. It seems to me that the harm to national security is a result of the government's error here, and not from allowing Al Haramain's suit to proceed.

As I understood the arguments, Al Haramain can argue that it has standing because it knows it was subject to surveillance of some kind given the government's accidental disclosure of a document indicating as much. The government's response that Al Haramain does not know this for sure because it does not know the document is authentic seemed a bit much. By that standard, we don't even know that there is a program at all. Indeed, maybe we don't actually engage in foreign intelligence surveillance at all! This "trust nothing" argument would foreclose all judicial review of state secrets claims, and I assume that cannot be right.

Further, as Al Haramain already knows it was surveilled, any harm to national security -- such as a change in behavior by Al Haramain or those with whom it is in contact, or other consequences resulting from the disclosure of the existence of such surveillance -- is likely to have occurred already. There may be details about how and why Al Haramain was surveilled which should still be protected by the state secrets doctrine, but I don't understand why this requires a dismissal of the case, as opposed to allowing it to proceed with the district court judge reviewing relevant materials. It is certainly possible that the doctrine might eventually prevent adjudicating the case on the merits, but I don't think the government can reach this result simply by making the blanket statement that this is a foreign intelligence program covered by the doctrine, especially when some of the relevant information that would have been protected has already been disclosed. This argument, if accepted, would again preclude any judicial review any time the government raises a state secrets claim.

I should add that I did not see the oral argument in the companion case, and it is possible that the state secrets doctrine arguments are stronger where there is no demonstration that surveillance of a given plaintiff actually occurred (as was the case in the Sixth Circuit case). My initial point was that in this case, given these facts, the government's argument seemed so broad and all-encompassing to carry the day.

Of course, as I noted at the outset, I may be misreading the doctrine or misunderstanding key aspects of the case. I am just going but what I watched on C-span.

8.20.2007 8:54pm
Dilan Esper (mail) (www):

It doesn't look like you were right. According to this link:

the plaintiffs got the inference at the trial court level, won a judgment, the judgment got reversed by the Supreme Court, and they were forced to settle WITHOUT the inference for $50,000 less. When the documents got released, it turned out they didn't have any legitimate secrets, just damaging information to the government's case.
8.20.2007 10:02pm
Anderson (mail) (www):
First, as a practical matter, if the government can assert state secrets here, it means that the goverment can always violate the law or the constitution, as long as it classifies the program. That can't be right

Well, you just make too damn much sense, so I'm sure that the law holds to the contrary.
8.21.2007 1:07am
David M. Nieporent (www):
Dilan, I don't understand your argument, which seems to put the cart before the horse. If the state secrets argument could be thwarted merely by artful pleading on the part of the plaintiff, it wouldn't be very useful protection for actual state secrets. Every plaintiff would just argue "illegal activity."

(To the extent "judges can just examine the evidence in camera" is valid, why should that be limited to allegations of illegal activity? Why not to all claims of state secrets?)

That having been said, I think I agree with Prof. Adler in this particular instance; once you release the information, claiming "state secrets" with regard to that information seems untenable. Orin's right that there may be details that are still protected by the state secrets doctrine, but that shouldn't require application of the doctrine wholesale.
8.21.2007 7:26am
cboldt (mail):
In Reynolds, what the plaintiffs obtained, then lost on reversal by SCOTUS was a judicial finding of liability (the ultimate outcome of the case) based on a narrow failure to produce.

The judgment in this case imposed liability upon the Government by operation of Rule 37, for refusal to produce documents under Rule 34.

The effect of the SCOTUS ruling was to reverse the court-imposed finding of negligence, and in it's place, remove only the privileged evidence from trial, following which the trial could proceed. Had the trial not been permitted to proceed, there would have been no settlement. SCOTUS ruled that the Rule 37 sanction, imposed and upheld by the courts below, was improper. Rather than "absence of this evidence dictates the outcome," which is what the trial court had done, the refusal to produce (which is a no-no, absent a recognized privilege) merely removes THAT evidence -- but not ALL of the evidence that would support a finding of negligence, and therefore liability.
Other cases worth reviewing are Halkin v. Helms and Jabara v. Webster
8.21.2007 8:01am
martinned (mail) (www):

Maybe it's that I am a softie European tree-hugger, but this whole state secrets doctrine, or at least the bulk of how it is applied, gives me the creeps. When the 4th circuit ruled in El-Masri earlier this year (based on the Reynolds precedent), I remember talking to one of my (also jurist) colleagues about how the logic of this doctrine offends my sense of justice: Just like some of the GITMO caselaw offends my idea that the executive should not, unilaterally, be able to affect the question of whether the constitution applies to these prisoners, I cannot get my head around the idea that the courts will simply take the government's word for it if they say that something is a secret, let alone that they would dismiss the whole case as a result.

Surely someone like El-Masri, who was alledgedly a victim of extraordinary rendition, should be able to win damages against the United States if his allegations are true? For starters, simply hold the trial behind closed doors. If need be, create something akin to the UK official secrets act if that is what it takes to stop the plaintiff putting the information they obtained in the New York Times. Not to mention that it is up to the plaintiff to provide evidence, which presumably serves to confirm things they already know from personal experience. (Yes, rendition did take place.) Where the government wants to introduce an anonymous witness, put them behind a screen or in another room. Get rid of the jury and have the judge decide the case entirely. Point is, there are heaps of things that can be done to protect the government's legitimate interest in safeguarding its secrets without letting it get away with clearly illegal acts.
8.21.2007 8:18am
cboldt (mail):
-- there are heaps of things that can be done to protect the government's legitimate interest in safeguarding its secrets without letting it get away with clearly illegal acts. --

Just to put a finer point to it -- do you think extraordinary rendition is illegal per se? Or that a mistaken identity results in risk of civil liability?
A parallel example, no-knock raids are legal, but sometimes the raiders break into the wrong house.
If the government intends to deny the existence of renditions per se, then there is no way to address issues of mistaken identity.
8.21.2007 9:47am
martinned (mail) (www):

Well, I only meant to use El-Masri as an example, but since you're asking, I think extraordinary rendition is a violation of the convention against torture in many cases.

Returning to the state secrets doctrine, I would suggest it should matter whether the plaintiff alleges the government caused him harm through culpa or through dolus. Accidentally breaking down the wrong door is one thing, sending someone abroad to be tortured is another. (Incidentally, that is not what happened to El-Masri, just to be clear.)
In these surveillance cases, the government knowingly and willingly did what it did, and the "victims" should be able to have the justification for its actions tested in court, so that they may be compensated if and to the extent that the government committed a wrong.
8.21.2007 10:19am
cboldt (mail):
-- I think extraordinary rendition is a violation of the convention against torture in many cases. --
If El-Masri had not been a case of mistaken identity, were the actions legal?
That's the question that, I think, the government wants to avoid being called to answer for. Unlike no-knock raids, which the government admits occur, the government will neither admit nor deny the practice of extraordinary rendition.
There are further difficulties in obtaining a "remedy" to state-sponsored secret surveillance, those being first, finding out one has been a subject of surveillance, and second, even if one has been a subject of unwarranted surveillance (meaning in all ways, no judicial warrant, and has in fact no intention of harming a neighbor or the state), what are the personal damages?
If one is doing nothing wrong, why should one be afraid of a police state? (In the spirit of "A Modest Proposal" for the satire impaired readers)
8.21.2007 10:50am
Justin (mail):

If they plead illegal activity, instead of the actual harm they allege, they would still have the burden of proof on the issue, and presumably Dilan's "first component" would still apply to discovery.
8.21.2007 12:17pm
Dilan Esper (mail) (www):

Justin's got it right. The state secrets doctrine is relatively straightforward when it comes to discovery of evidence. What I am looking for is a dividing line for when it bars a cause of action completely, which does not allow the government to simply legalize an illegal program by classifying it. If the plaintiff says "you breached my secret contract" or "you negligently injured me in the course of this secret program", there may be no way to litigate the case at all without giving away the secret. But that doesn't seem necessarily true in the case where it is the legality of the secret program itself that is at issue, because the case can proceed in one of the ways I suggested. And as I said, there SHOULDN'T be a state secrets privilege for actually illegal activity. In the Totten and Reynolds situations, the government's covert programs were legal. But if the covert program is illegal, there has to be a way to challenge it. And there is, either through stipulated facts, in camera presentation of evidence, or the resolution of the legal issue first.
8.21.2007 1:55pm