Keep it secret, keep it safe: an empirical analysis of the state secrets doctrine.

• Author: Cassman, Daniel R.

INTRODUCTION I. THE STATE SECRETS DOCTRINE A. The Totten Bar B. The Reynolds Privilege C. Analyzing the State Secrets Doctrine II. BUILDING A STATE SECRETS DATASET III. FINDING TRENDS IN THE DATA A. How Have Courts Ruled on State Secrets Assertions? B. Do Rulings Differ if the Government Is a Party? C. Do Rulings Differ Depending on the Issues in the Case? IV. TRENDS FROM THE DATA A. Courts Have Been Less Likely to Reach the Privilege Issue After September 11 B. Criminal Defendants Have Particular Difficulty Overcoming Privilege Assertions C. Fourth Amendment Cases CONCLUSION INTRODUCTION

Binyam Mohamed, an Ethiopian citizen and legal resident of the United Kingdom, was arrested in a Karachi airport in Pakistan in 2002. (1) Though originally arrested on immigration charges, (2) Mohamed was detained based on suspicions that he had trained and fought with al Qaeda or the Taliban. He was transported, on planes allegedly operated by the CIA through a private contractor, to detention facilities in Morocco and Afghanistan. (4) There, he says, he was viciously tortured. He was beaten so severely that he suffered broken bones. (5) He was cut all over his body, including on his genitals, with a scalpel. (6) Hot, stinging liquid was poured into his wounds. (7) Then he was transferred to the American military prison at Guantanamo Bay, Cuba, where he was detained for years. (8) In October 2008, the U.S. government decided to drop all of the charges against him. (9) In February 2009, almost seven years after his arrest, Mohamed was released. (10) He was never tried for, let alone convicted of, any crime. (11)

Mohamed and several other former detainees who claimed to have suffered similar experiences sued Jeppesen Dataplan, an American company, in federal court. (12) They claimed that Jeppesen had provided flight planning and logistical services to the CIA, facilitating the CIA's efforts to render them to places where they were illegally detained and tortured. The U.S. government intervened in the case on Jeppesen's behalf, claiming that any information about the scope or operation of the CIA's detention and interrogation programs, and any information that might "reveal intelligence activities, sources, or methods," was too sensitive to reveal in court. (14) Courts have procedures for dealing with classified evidence, but the government argued that this information was so important to military and intelligence operations that even those procedures would be inadequate. (15) Therefore, the government claimed, the case should be dismissed pursuant to a rarely used legal doctrine known as the state secrets privilege. (16) According to the government, the risk of revealing sensitive information was so great that dismissal was warranted even though the plaintiffs intended to prove their case only with publicly available information.

A judge in the Northern District of California agreed and dismissed the case. (18) A unanimous three-judge panel of the Ninth Circuit Court of Appeals reversed, (19) but the Ninth Circuit then agreed to hear the case en banc. (20) The en banc panel determined that there was "no feasible way to litigate Jeppesen's alleged liability without creating an unjustifiable risk of divulging state secrets," (21) 22 23 despite the plaintiffs' intention to rely only upon public information. The en banc panel vacated the reversal and upheld the district court's decision, though it concluded "reluctantly" that Mohamed's case was one of the rare situations in which state secrets preclude justiciability. (22) The Supreme Court declined to hear the case. (23)

The executive branch has also used the state secrets privilege to insulate the National Security Agency's (NSA's) interception of Americans' phone calls and digital communications from judicial oversight. (24) Despite the Department of Justice's promises during the beginning of President Obama's first term that the administration would limit use of the state secrets privilege, (25) the administration continued a trend (that began during the Bush Administration) of invoking the privilege to prevent judicial review of NS A surveillance. (26) Litigation regarding NSA surveillance is ongoing, and the courts have made it clear that the state secrets privilege will play an important role. (27) The effect of the state secrets privilege in the NSA surveillance litigation is discussed in more detail in Part IV.C.

The idea that the government can shield its activities, including the alleged torture and detention of innocent people, from any judicial oversight is inherently problematic in a society that values democracy, transparency, and the rule of law. (28) Unlike other reasons for dismissal, the state secrets bar against certain cases is '"designed not merely to defeat the asserted claims, but to preclude judicial inquiry' entirely." At the same time, our nation's security depends on the secrecy of certain operations. (29) As a result, the state secrets doctrine seeks to strike a "difficult balance ... between fundamental principles of our liberty, including justice, transparency, accountability and national security." (31) Sometimes, though, "exceptional circumstances create an irreconcilable conflict between them." (32) The legal rules that resolve these conflicting values--and the courts that implement them--play a crucial role in the functioning of our government. (33) But it is difficult or impossible to evaluate how well these rules are working, and how faithfully courts are applying them, when the information involved is secret. This Note seeks to assess application of the state secrets privilege through a combination of data analysis and examination of court documents.

In Part I, I review the history of the state secrets doctrine, starting with its common law roots in the early years of the Republic and continuing through its evolution during the last decade. In Part II, I describe the dataset I use to explore the state secrets doctrine. Part III identifies four important trends in the data. First, there has been a major increase in use of the state secrets doctrine since September 11, 2001, but in cases to which the government is a party, courts have nonetheless tended to uphold state secrets claims at about the same rate as before September 11. Second, after September 11, courts have usually not ruled on state secrets assertions if the government is not a party to the case. Third, assertions of state secrets are almost always upheld in full in criminal cases. Fourth, state secrets claims are relatively more likely to be denied, at least in part, in Fourth Amendment cases than in most other types of cases. Following this analysis of the numerical data, I examine several cases in depth to explore the reasons behind these trends.

Part IV explores the last three trends in more detail. I argue that the dramatic increase in assertions of the state secrets doctrine since September 11 is due to an increase in litigation against the government, more frequent invocation by the executive branch, and more lawsuits against defense contractors who claim the privilege in an aggressive approach to preserve affirmative defenses. The cases against defense contractors frequently settle or are dismissed on other grounds, obviating the need for the court to decide the state secrets issue. The

rest of the increase is likely due to the large number of lawsuits regarding the detention, interrogation, and surveillance programs aimed at fighting terrorism. Most importantly, any significant differences in the distribution of courts' resolutions of state secrets assertions since September 11 are limited almost entirely to private litigation.

I also argue that criminal defendants' general inability to overcome the privilege is troubling given their constitutional rights and compelling interests. Even so, the small number of criminal cases in which the privilege is asserted suggests that prosecutorial discretion might also be a factor. (34) I hypothesize that the lower success rate for state secrets claims in Fourth Amendment cases is an indication that courts make at least a nominal effort to protect individual constitutional rights when feasible, but they are nonetheless failing to do so effectively. Ultimately, the data are far from conclusive. They do not indicate any obvious abuse of the state secrets privilege, but the trend in criminal cases and the substance of some Fourth Amendment cases suggest that the doctrine may not strike the proper balance between national security and protection of our rights and liberties.

1. THE STATE SECRETS DOCTRINE

   American courts recognized the necessity for a judicial doctrine protective of sensitive national security information in the early nineteenth century. During the treason trial of Aaron Burr, Burr subpoenaed orders from the President to army and navy officers to apprehend Burr, a letter from a general to the President concerning Burr, and the President's response. (35) The prosecution opposed the subpoena for several reasons, including that the documents "might contain state secrets, which could not be divulged without endangering the national safety." (36) Chief Justice John Marshall expressed serious concerns about the possibility of the prosecution denying a criminal defendant evidence essential to his defense, especially in a capital case:

   That there may be matter, the production of which the court would not require, is certain; but, in a capital case, that the accused ought, in some form, to have the benefit of it, if it were really essential to his defence, is a position which the court would very reluctantly deny. It ought not to be believed that the department which superintends prosecutions in criminal cases, would be inclined to withhold it. What ought to be done under such circumstances presents a delicate question, the discussion of which, it is hoped, will never be rendered necessary in this country. (37)...