SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 85
August 17, 2007

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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COURT OVERTURNS DISMISSAL OF "STATE SECRETS" CASE

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court recently reinstated a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege.

The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government's invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case.

"In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence," the Court said.

The Court presented its ruling as a straightforward application of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege.

"The majority's reversal of the district court's decision," wrote Judge Janice Rogers Brown, "pushes this circuit's state secrets jurisprudence in a new and troubling direction -- one at odds with all other circuits that have considered the issue."

The case was remanded to the district court level for further deliberation.

See the unsealed Appeals Court ruling "In Re: Sealed Case," June 29, 2007 here:

Coincidentally, the American Bar Association (www.abanet.org) this week adopted a resolution urging that "whenever possible," federal civil cases should not be dismissed "based solely on the state secrets privilege." The ABA resolution also proposed a set of legislative changes designed "to encourage meaningful judicial review of assertions of the state secrets privilege" and to regulate use of the privilege.

A copy of the ABA resolution, adopted August 13, and an accompanying report elaborating on its recommendations may be found here:

CRS REPORTS ON VARIOUS TOPICS

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following.

"Capital Punishment Overview: 2006-2007 Term of the Supreme Court," July 20, 2007:

"Globalization, Worker Insecurity, and Policy Approaches," updated July 24, 2007:

"Executive Branch Reorganization and Management Initiatives: A Brief Overview," updated July 10, 2007:

"Constitutional Limits on Punitive Damages Awards: An Analysis of the Supreme Court Case Philip Morris USA v. Williams," updated July 17, 2007:

"Internet Search Engines: Copyright's 'Fair Use'" in Reproduction and Public Display Rights," updated July 12, 2007:

"Nuclear Energy Policy," updated July 12, 2007:

"The Committee on Foreign Investment in the United States (CFIUS)," updated July 23, 2007:

"Private Security Contractors in Iraq: Background, Legal Status, and Other Issues," updated July 11, 2007:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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