from the FAS Project on Government Secrecy
Volume 2002, Issue No. 34
April 23, 2002
STATE SECRETS PRIVILEGE GETS A WORKOUT
- STATE SECRETS PRIVILEGE GETS A WORKOUT
- NEW BOOKS RECEIVED
The Bush Administration has invoked the "state secrets privilege" repeatedly in recent months to justify dismissal of pending litigation against the government.
The state secrets privilege is the nuclear bomb of legal tactics. When the government invokes it to withhold evidence or to block discovery, it can effectively terminate the case. And the privilege is absolute.
"Secrets of state -- matters the revelation of which reasonably could be seen as a threat to the military or diplomatic interests of the nation -- are absolutely privileged from disclosure in the courts...," according to a 1982 appeals court ruling. "Once the court is satisfied that the information poses a reasonable danger to secrets of state, 'even the most compelling necessity cannot overcome the claim of privilege...'." (Halkin v. Helms, 690 F.2d 977).
Because it is so powerful and can trample legitimate claims against the government, the state secrets privilege is "not to be lightly invoked," said the Supreme Court in the fifty year old case that first recognized its applicability. (United States v. Reynolds, 345 U.S. 1, 7 (1953)).
Yet the privilege has been invoked twice in the past two months by the Bush Administration.
In February, the Administration successfully argued that the lawsuit brought by former Energy Department official Notra Trulock alleging that he was defamed by former Los Alamos scientist Wen Ho Lee could not proceed without violating state secrets.
"The Bush Justice Department... conjured up a bogus argument, backed by secret CIA affidavits submitted to the court ex parte, that trying this simple defamation case would itself breach national security," according to a February 12 press release from Judicial Watch, which represented Mr. Trulock. See:
The Trulock case was dismissed.
Last week, the state secrets privilege was again invoked against a former CIA officer who sued the CIA in the southern district of New York alleging that he was the target of racial discrimination. Citing state secrets, the government moved for dismissal of the case or, alternatively, a change of venue to Virginia.
"With this motion, the Director of Central Intelligence asserts the state secrets privilege and the DCI's statutory privileges to support the Government's claim that venue is proper only in the Eastern District of Virginia," according to the April 18 filing in Sterling v. Tenet, et al.
"No further explanation can be made on the public record without risking disclosure of the Classified Information that the DCI is invoking the state secrets and statutory privileges to protect," the filing stated.
(The use of the term "DCI's statutory privileges" is a CIA conceit referring to the statutory requirement that the DCI must protect intelligence sources and methods. Although this statute is often employed in a self-interested way, it is an obligation of law and not a "privilege" that can be waived.)
See the Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint for Improper Venue or in the Alternative to Transfer Venue:
Invoking the state secrets privilege in this way to argue for a change of venue appears to be unprecedented. Speculatively, it could be inferred from the language of the government's pleading that the secret that CIA wishes to protect is the existence of a CIA office or facility in New York.
In any case, the repeated use of the mighty state secrets privilege and its exploitation to support a mere motion for change of venue suggest that the injunction "not to lightly invoke" the privilege may have been forgotten or lost its force.
NEW BOOKS RECEIVED
Secrecy News welcomes review copies of new books on national security, information policy and intelligence. Recent arrivals include:
"The Pueblo Incident: A Spy Ship and the Failure of American Foreign Policy," by Mitchell B. Lerner, University Press of Kansas (Lawrence, KS: 2002):
"The New Craft of Intelligence: Personal, Public, and Political; Citizen's Action Handbook for Fighting Terrorism, Genocide, Disease, Toxic Bombs, and Corruption," by Robert David Steele, OSS International Press (Oakton, VA: 2002):
"Chasing Spies: How the FBI Failed in Counterintelligence But Promoted the Politics of McCarthyism in the Cold War Years," by Athan Theoharis, Ivan R. Dee (Chicago: 2002).
"Opération Fi@t Lux: La Nouvelle Guerre de la National Security Agency," par Thomas O'Neil et Jean de Kerily, Éditions du Rocher (Paris: 2002):
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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