SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 73
October 31, 2014

Secrecy News Blog: http://fas.org/blogs/secrecy/

COURT DENIES MOTION TO DISMISS STATE SECRETS CASE

A federal court yesterday denied a government motion to dismiss a pending lawsuit that the Obama Administration said involved state secrets. It appears to be the first time that such a motion for dismissal has ever been rejected in a state secrets case. [Correction: There is at least one other case.] The lawsuit, Gulet Mohamed v. Eric H. Holder, concerns the constitutionality of the "no fly" list.

The government filed its dismissal motion last May 28. It included a declaration from Attorney General Eric Holder in which he asserted "a formal claim of the state secrets privilege in order to protect the national security interests of the United States."

In August, Judge Anthony J. Trenga of the Eastern District of Virginia ordered the government to provide copies of the assertedly privileged documents for his in camera review. After initially resisting and seeking reconsideration of that order, the government complied.

Based on his review, Judge Trenga yesterday issued his order denying the government motion for dismissal of the case. He said that "the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient" to justify suspending the proceeding, though he declined to rule definitively on whether the state secrets privilege did or did not apply to any of the documents. He did allow that some of the documents appear to contain security sensitive information that may be subject to a law enforcement privilege.

Even so, the case can go forward without the documents, he said, and dismissal is unwarranted.

"None of the documents are so related to plaintiff's procedural due process claims as to prevent either the plaintiff or the defendant from presenting or defending against those claims without the use of any of these documents," he wrote in his October 30 order.

The state secrets privilege is not a get out of jail (or get out of court) free card, Judge Trenga indicated.

"The state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability," he wrote. This means that it can be properly used to prevent the introduction of specific items of evidence, but not to sweepingly exclude whole domains of law and policy from litigation or due process.

In theory, the Department of Justice agrees with this position, which it endorsed in a September 2009 policy statement.

"Under this policy, the Department will narrowly tailor the use of the states secrets privilege whenever possible to allow cases to move forward in the event that the sensitive information at issue is not critical to the case," the Justice Department said then.

But since that policy was issued in 2009 by Attorney General Holder, there is no known case in which Department officials actually went on to "narrowly tailor" their use of the privilege in this way. Now Judge Trenga has done it for them.

2014 INTELLIGENCE BUDGET FIGURES RELEASED

The National Intelligence Program received a total appropriation of $50.5 billion in fiscal year 2014, the Office of the Director of National Intelligence disclosed yesterday, as required by law. The Military Intelligence Program was funded at $17.4 billion in FY 2014, the Department of Defense said. Current and past intelligence budget disclosures can be found here:

Marshall Erwin, a former analyst at the Congressional Research Service and the CIA, said that in principle, the intelligence community should be able to "absorb recent cuts quite easily." But "whether the IC will actually absorb cuts without degrading capabilities is a separate question. While it has the means to do so, thus far decisionmakers have not proven up to the task." He presented his perspective on trends in intelligence spending in "Doing Way More with Much Less: Intelligence by the Numbers" on the new blog Overt Action.

Overt Action is part of an effort by Erwin and several colleagues "to create a venue for intelligence professionals to more effectively engage in public debate."

INTELLIGENCE WHISTLEBLOWER PROTECTIONS, AND MORE FROM CRS

New publications from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Intelligence Whistleblower Protections: In Brief, October 23, 2014:

Sexual Violence at Institutions of Higher Education, October 23, 2014:

Cities Try, and Fail (So Far), to Prevent Federal Marijuana Enforcement, CRS Legal Sidebar, October 24, 2014:

Bankruptcy for Marijuana Businesses?, CRS Legal Sidebar, October 29, 2014:

Spectrum Needs of Self-Driving Vehicles, CRS Insights, October 28, 2014:

The Ebola Outbreak: Quarantine and Isolation Authority, CRS Legal Sidebar, October 28, 2014:

Can Marriage Conquer "Consular Nonreviewability" for a Spouse's Visa Denial?, CRS Legal Sidebar, October 30, 2014:

Congressional Power to Create Federal Courts: A Legal Overview, October 1, 2014:

Drug Enforcement in the United States: History, Policy, and Trends, October 2, 2014:

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

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