from the FAS Project on Government Secrecy
Volume 2009, Issue No. 39
April 29, 2009

Secrecy News Blog:


The government's use of the state secrets doctrine to shut down litigation on certain sensitive national security topics could be sharply curtailed by a new federal appeals court ruling.

The ruling came in a lawsuit brought by the ACLU against a company called Jeppesen DataPlan and filed on behalf of several plaintiffs who said they were unlawfully seized and transported with Jeppesen's flight support to foreign countries where they were allegedly interrogated under torture in a CIA "extraordinary rendition" program.

The government sought to have the whole case thrown out because the subject matter, it said, is a "state secret." The lower court agreed, and dismissed the case last year.

But the appeals court said the state secrets privilege can only apply to "evidence" to be introduced in court, not to mere "information." The ruling sent the case back to the lower court with the instruction that "the government must assert the privilege with respect to secret evidence (not classified information)" and the lower court must then determine whether the privilege applies. Only if the privilege is granted and if the privileged evidence is indispensable to the case could the case then be dismissed.

This would rule out the approach followed by the Bush and Obama Administrations in which they invoked the state secrets privilege to effectively block litigation on entire topical areas -- shielding whole categories of information such as extraordinary rendition and warrantless surveillance -- not just to prevent the introduction of specific evidence that they claimed was privileged.

In another crucial distinction, the court said that the fact that certain information is "classified" does not necessarily mean that it is "secret" for purposes of the privilege.

"A rule that categorically equated 'classified' matters with 'secret' matters would, for example, perversely encourage the President to classify politically embarrassing information simply to place it beyond the reach of judicial process," the court said. ("Abuse of the Nationís information classification system is not unheard of," the court noted drily.)

Instead of relying solely on government classification claims, "courts must undertake an independent evaluation of any evidence sought to be excluded to determine whether its contents are secret within the meaning of the [state secrets] privilege."

Such an independent judicial evaluation of official secrecy claims is precisely what critics of recent use of the state secrets privilege such as Louis Fisher and others have been asking for. (The court cited a review of books by Fisher and Barry Siegel about the 1953 Reynolds case and the state secrets privilege that was published earlier this year in the NY Review of Books.) Judicial review is also the centerpiece of the proposed "State Secrets Protection Act" that is pending in Congress.

See the Appeals Court ruling in Binyam Mohamed, et al, v. Jeppesen DataPlan, April 28, 2009:

The government has not yet indicated how it will respond to the ruling.


There is practically a universal consensus that the national security classification system has become dysfunctional and counterproductive. (Just what to do about it remains up in the air--more on that shortly).

That consensus was articulated again earlier this month in a speech by Joan Dempsey, formerly a senior Pentagon intelligence official, a Deputy Director of Central Intelligence, and executive director of the President's Foreign Intelligence Advisory Board, and now a vice president at Booz Allen and Hamilton.

"Ninety-five percent of what we do shouldn't be classified at all, or it should be a much lower level of classification," Ms. Dempsey said. "We're lazy about classification. We call things secret that are not secret. It hampers our ability to be effective as a community. It costs the country billions of unnecessary dollars, and it doesn't provide us one additional capability. We're our own worst enemy in that regard," she said.

Ms. Dempsey spoke on April 14 at the University of Texas at Austin. Her talk, ironically enough, was entitled "Back to Black: An Argument for Removing U.S. Intelligence Activities from Public Scrutiny," and amounted to a call for increased secrecy of intelligence operations. But her defense of intelligence secrecy, she said, was contingent on robust congressional oversight and was not intended to shield misconduct or to perpetuate overclassification. A webcast of the talk is available here (the discussion of classification begins at about 28:45):


The U.S. Army last year blocked online public access to the Military Intelligence Professional Bulletin (MIPB), an Army intelligence journal, and moved the publication archive to the password-protected "Intelligence Knowledge Network." ("Army Blocks Public Access to Intel Journal," Secrecy News, March 31, 2009).

But in response to a Freedom of Information Act request from the Federation of American Scientists, the Army promptly handed over a softcopy of the MIPB archive, as it was obliged to do. (One exception: A Fall 2007 issue on Biometrics, marked FOUO, has not yet been approved for public release.)

Back issues of the MIPB through the end of 2008 are now available here:

For the last several years, a growing volume of government information, especially unclassified defense-related information, has been removed from official websites and transferred behind password-protected portals. There is no complete record of what has been removed, and to reverse the process therefore requires a time-consuming, piecemeal effort just to identify and secure the most valuable items.


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

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