State Secrets and the Limits of National Security Litigation

Abstract

The state secrets privilege has played a central role in the Justice Department's response to civil litigation arising out of post-9/11 policies, culminating in a controversial decision by Judge T.S. Ellis concerning a lawsuit brought by a German citizen - Khaled El-Masri - whom the U.S. allegedly had rendered (by mistake) from Macedonia to Afghanistan for interrogation. Reasoning that the entire aim of the suit is to prove the existence of state secrets, Judge Ellis held that the complaint had to be dismissed in light of the privilege. The government also has interposed the privilege in connection with litigation arising out of the NSA's warrantless surveillance program, albeit with mixed success so far.

These events amply demonstrate the significance of the state secrets privilege, but unfortunately much uncertainty remains regarding its parameters and justifications. Is it being used by the Bush administration in cases like El-Masri, as some critics have suggested, in a manner that breaks with past practice, either in qualitative or quantitative terms?

I address these questions through a survey of the origin and evolution of the privilege, compiling along the way a comprehensive collection of state-secrets decisions issued since the Supreme Court's seminal 1953 decision in United States v. Reynolds (the collection appears in the article's appendix). With respect to the quantitative issue, I conclude that there is little point to the inquiry in light of the variation in the number of occasions for asserting the privilege from year to year. With respect to the qualitative issue, I find that the Bush administration does not differ from its predecessors in its use of the privilege. Since the early 1970s the privilege has frequently been the occasion for abrupt dismissal of lawsuits alleging government misconduct. Recognizing that the privilege strikes a harsh balance among the security, individual rights, and democratic accountability interests at stake, however, I conclude with a discussion of reforms Congress might undertake if it wished to ameliorate the privilege's impact. In particular, I suggest that (i) opportunities exist to provide assistance to judges in assessing the potential impact of disclosures and (ii) even where the privilege properly attaches special procedures might be adopted to permit litigation to continue in a classified, quasi-adversarial setting, at least where unconstitutional government conduct is alleged.

Keywords: state secrets, privilege, rendition, warrantless surveillance