State's Secret Privilege Rejected

Great news! The Ninth Circuit Court of Appeals, in a unanimous decision, reversed a lower court ruling that dismissed a lawsuit brought against Jeppson, Inc., (a subsidiary of Boeing). The lawsuit was brought by five individuals who alleged that Jeppson acted tortuously when it flew these men (who were in the CIA's custody) to prisons outside the United States as a part of the "extraordinary renditions" program. The men claim they were tortured and that Jeppson knew, or should have known, that the CIA was rendering these men so that they could be tortured.

The court explained that there are two versions of the state secrets privilege. The Totten version and the Reynolds version.

The Totten version precludes suit when the subject matter of the suit is a secret agreement with the government and the Plaintiff is a party to that agreement. The basic idea is that, if I make a secret agreement with the government(to be its spy) and the government refuses to pay me pursuant to the agreement, I cannot sue the government. This is because: (1) the agreement between a spy and the government is a state secret, given that the Parties to the agreement contractually expected that neither party would ever reveal the relationship; and (2) the very existence of the suit exposes the secret.

The Reynolds version is an evidentiary privilege allowing the government to withhold evidence, provided that it can convince a court (which is supposed to be deferential) that the introduction of the evidence would harm national security.

In the Jeppson case, our government attempted expand the Totten rule to cover any matter the executive considered to be a state secret. It attempted to convince the Ninth Circuit Court of Appeals that the Totten Court's decision stood for the proposition that litigation, "the very subject matter" of which is a state secret, cannot proceed. It then argued that under our constitution, the executive is the sole determiner of what constitutes a state secret.

The Ninth Circuit Court rejected that interpretation. The Court explained that in making that "subject matter" remark (in a later case), the Supreme Court was merely acknowledging that the subject matter of a case (e.g., a spying agreement where the parties had contractual expectation that the "lips of the other party would remain forever sealed") can render a case unlitigatable because the very existence of the suit reveals the secret.

However, the Supreme Court was not saying that any case involving secret government activities, or any case involving information that the government wants to keep secret, is unlitigatable. In such cases, litigation is permitted, subject to the executive's legitimate invocation of the evidentiary privilege. Were this not so, and were the Totten rule to apply to all secret governmental conduct, the government agency could effectively exempt itself from the requirements and restraints of the law (via judicial scrutiny) by declaring its activities "state secrets."

The point to keep in mind is that a government-spy relationship is necessarily a state secret - an exposed spy cannot effectively spy. Wiretapping without warrants and torture are not inherently secret activities. They are merely activities that the government wants to keep secret.

The Court acknowledged that the executive has an important constitutional interest in protecting secrets pertaining to national security. But it pointed out that the Courts have an equally strong (and perhaps more fundamental) constitutional interest in protecting the rights of individuals against government misconduct. The Court explained that the governments' proposed expansion of the Totten rule placed these interests within a zero sum game where the executive's interests are fully accommodated while the Courts' interests are completely sacrificed.

To the contrary, the Reynolds version of the privilege accomodates both constitutional interests, albeit incompletely. Under the Reynolds version of the privilege, the executive cannot simply refuse to litigate - which would be the best way to protect its information. It must instead convince a court that the evidence sought to be discovered or introduced at trial would harm national security. This allows the Court to pursue its interest in protecting the rights of individuals against governmental misconduct up to the point where doing so would harm everyone.

The Ninth Circuit Court also explained that "evidence" is a more limited concept than "information," and the mere fact that a plaintiff's allegations involve classified information does not preclude a suit. The privilege applies to specific pieces of evidence, not to facts or allegations that the privileged evidence purportedly proves. That this is correct is evidenced by the fact that our privilege against self incrimination does not preclude the government from proving our guilt with non privileged evidence.

The Court also explained that United States intervened and filed its Motion to Dismiss at a very early stage in the litigation, before the Defendant had answered the complaint and before any discovery requests had been made. The Court explained that the lower court could not have found that there was no possible way for the Plaintiffs to prove their case until it reviewed the government's assertions of privilege regarding specific pieces of evidence requested. And since the complaint alleged facts supporting legitimate causes of action (i.e., it was a "well pleaded" complaint), the case should move forward to discovery.

This decision is relative short, and I highly recommend it because the Court also articulated very clearly the importance of not allowing the executive to immunize all of its actions from judicial scrutiny. Its easily understandable by a non-lawyer.

Joe H.