II. State Secrets Privilege
Defendants argue that the state secrets privilege bars Plaintiffs’ claims because Plaintiffs cannot establish standing or a prima facie case for any of their claims without the use of state secrets. Further, Defendants argue that they cannot defend this case without revealing state secrets. For the reasons articulated below, the court rejects Defendants’ argument with respect to Plaintiffs’ claims challenging the TSP. The court, however, agrees with Defendants with respect to Plaintiffs’ data- mining claim and grants Defendants’ motion for summary judgment on that claim.
The state secrets privilege is an evidentiary rule developed to prevent the disclosure of information which may be detrimental to national security. There are two distinct lines of cases covering the privilege. In the first line of cases the doctrine is more of a rule of “non-justiciability because it deprives courts of their ability to hear suits against the Government based on covert espionage agreements.” El-Masri v. Tenet, 2006 WL 1391390 at 7 (E.D.Va., 2006). The seminal decision in this line of cases is Totten v. United States 92 U.S. 105 (1875). In Totten, the plaintiff brought suit against the government seeking payment for espionage services he had provided during the Civil War. In affirming the dismissal of the case, Justice Field wrote:
The secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery. Totten, 92 U.S. at 107.
The Supreme Court reaffirmed Totten in Tenet v. Doe, 544 U.S. 1, (2005). In Tenet, the plaintiffs, who were former Cold War spies, brought estoppel and due process claims against the United States and the Director of the Central Intelligence Agency (hereinafter “CIA”) for the CIA’s alleged failure to provide them with the assistance it had allegedly promised in return for their espionage services. Tenet, 544 U.S. at 3. Relying heavily on Totten, the Court held that the plaintiffs claims were barred. Delivering the opinion for a unanimous Court, Chief Justice Rehnquist wrote:
We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: “Even a small chance that some court will order disclosure of a source’s identity could well impair intelligence gathering and cause sources to ‘close up like a clam.’” (citations omitted). Tenet, 544 U.S. at 11.
The second line of cases deals with the exclusion of evidence because of the state secrets privilege. In United States v. Reynolds, 345 U.S. 1 (1953), the plaintiffs were the widows of three civilians who died in the crash of a B-29 aircraft. Id. at 3-4. The plaintiffs brought suit under the Tort Claims Act and sought the production of the Air Force’s official accident investigation report and the statements of the three surviving crew members. Id. The Government asserted the states secret privilege to resist the discovery of this information, because the aircraft in question and those aboard were engaged in a highly secret mission of the Air Force. Id. at 4.
In discussing the state secrets privilege and its application, Chief Justice Vinson stated:
The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. Reynolds, 345 U.S. at 8.
The Chief Justice further wrote:
In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. Reynolds, 345 U.S. at 11.
The Court sustained the Government’s claim of privilege, finding the plaintiffs’ “necessity” for the privileged information was “greatly minimized” by the fact that the plaintiffs had an available alternative. Reynolds, 345 U.S. at 11. Moreover, the Court found that there was nothing to suggest that the privileged information had a “causal connection with the accident” and that the plaintiffs could “adduce the essential facts as to causation without resort to material touching upon military secrets.” Id.
In Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978) (Halkin I ), the District of Columbia Circuit Court applied the holding in Reynolds in a case in which the plaintiffs, Vietnam War protestors, alleged that the defendants, former and present members of the NSA, the CIA, Defense Intelligence Agency, the Federal Bureau of Investigation and the Secret Service engaged in warrantless surveillance of their international wire, cable and telephone communications with the cooperation of telecommunications providers. Id. at 3. The telecommunications providers were also named as defendants. Id. The plaintiffs specifically challenged the legality of two separate NSA surveillance operations undertaken from 1967 to 1973 named operation MINARET and operation SHAMROCK. (3) Id. at 4.
The Government asserted the state secrets privilege and moved for dismissal for the following reasons: (1) discovery would “confirm the identity of individuals or organizations whose foreign communications were acquired by NSA”; (2) discovery would lead to the disclosure of “dates and contents of such communications”; or (3) discovery would “divulge the methods and techniques by which the communications were acquired.” Halkin, 598 F.2d at 4-5. The district court held that the plaintiffs’ claims against operation MINARET had to be dismissed “because the ultimate issue, the fact of acquisition, could neither be admitted nor denied.” Id. at 5. The district court, however, denied the Government’s motion to dismiss the plaintiffs’ claims regarding operation SHAMROCK, because it “thought congressional committees investigating intelligence matters had revealed so much information about operation SHAMROCK that such a disclosure would pose no threat to the NSA mission.” Id. at 10.
On appeal, the District of Columbia Circuit Court affirmed the district court’s dismissal of the plaintiffs’ claims with respect to operation MINARET but reversed the court’s ruling with respect to operation SHAMROCK. In reversing the district court ruling regarding SHAMROCK, the circuit court stated:
…we think the affidavits and testimony establish the validity of the state secrets claim with respect to both SHAMROCK and MINARET acquisitions; our reasoning applies to both. There is a “reasonable danger”, (citation omitted) that confirmation or denial that a particular plaintiff’s communications have been acquired would disclose NSA capabilities and other valuable intelligence information to a sophisticated intelligence analyst. Halkin, 598 F.2d at 10.
The case was remanded to the district court and it dismissed the plaintiffs’ claims against the NSA and the individuals connected with the NSA’s alleged monitoring. Halkin v. Helms, 690 F.2d 977, 984 (D.C. Cir.1982) (Halkin II).
In Halkin II, 690 F.2d 977, the court addressed plaintiffs’ remaining claims against the CIA, which the district court dismissed because of the state secrets privilege. In affirming the district court’s ruling, the District of Columbia Circuit stated:
It is self-evident that the disclosures sought here pose a “reasonable danger” to the diplomatic and military interests of the United States. Revelation of particular instances in which foreign governments assisted the CIA in conducting surveillance of dissidents could strain diplomatic relations in a number of ways-by generally embarrassing foreign governments who may wish to avoid or may even explicitly disavow allegations of CIA or United States involvements, or by rendering foreign governments or their officials subject to political or legal action by those among their own citizens who may have been subjected to surveillance in the course of dissident activity. Halkin II, 690 F.2d at 993.
Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir.1983) was yet another case where the District of Columbia Circuit dealt with the state secrets privilege being raised in the defense of a claim of illegal wiretapping. In Ellsberg, the plaintiffs, the defendants and attorneys in the “Pentagon Papers” criminal prosecution brought suit when, during the course of that litigation, they discovered “that one or more of them had been the subject of warrantless electronic surveillance by the federal Government.” Id. at 51. The defendants admitted to two wiretaps but refused to respond to some of the plaintiffs’ interrogatories, asserting the state secrets privilege. Id. at 54. The plaintiffs sought an order compelling the information and the district court denied the motion, sustaining the Government’s assertion of the state secrets privilege. Id. at 56. Further, the court dismissed the plaintiffs’ claims that pertained “to surveillance of their foreign communications.” Ellsberg v. Mitchell, 709 F.2d at 56.
On appeal, the District of Columbia Circuit reversed the district court with respect to the plaintiffs’ claims regarding the Government’s admitted wiretaps, because there was no reason to “suspend the general rule that the burden is on those seeking an exemption from the Fourth Amendment warrant requirement to show the need for it.” Ellsberg, 709 F.2d at 68. With respect to the application of the state secrets privilege, the court stated:
When properly invoked, the state secrets privilege is absolute. No competing public or private interest can be advanced to compel disclosure of information found to be protected by a claim of privilege. However, because of the broad sweep of the privilege, the Supreme Court has made clear that “[i]t is not to be lightly invoked.” Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter. Ellsberg, 709 F.2d at 56.
In Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998), the plaintiffs, former employees at a classified United States Air Force facility, filed suit against the Air Force and the Environmental Protection Agency under the Resource Conservation and Recovery Act, alleging violations at the classified facility. Id. at 1162. The district court granted summary judgment against the plaintiffs, because discovery of information necessary for the proof of the plaintiffs’ claims was impossible due to the state secrets privilege. Id. In affirming the district court’s grant of summary judgment against one of the plaintiffs, the Ninth Circuit stated:
Not only does the state secrets privilege bar [the plaintiff] from establishing her prima facie case on any of her eleven claims, but any further proceeding in this matter would jeopardize national security. No protective procedure can salvage [the plaintiff’s] suit. Kasza, 133 F.3d at 1170.
The Kasza court also explained that “[t]he application of the state secrets privilege can have… three effects.” Kasza, 133 F.3d at 1166. First, when the privilege is properly invoked “over particular evidence, the evidence is completely removed from the case.” Id. The plaintiff’s case, however, may proceed “based on evidence not covered by the privilege.” Id. “If . . . the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence, then the court may dismiss her claim as it would with any plaintiff who cannot prove her case.” Id. Second, summary judgement may be granted, “if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim.” Id. Lastly, “notwithstanding the plaintiff’s ability to produce nonprivileged evidence, if the ‘very subject matter of the action’ is a state secret, then the court should dismiss the plaintiff’s action based solely on the invocation of the state secrets privilege.” Id.
The Sixth Circuit delivered its definitive opinion regarding the states secrets privilege, in Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004). In that case, the plaintiffs sued the United States and various employees of federal agencies, alleging that the defendants engaged in criminal espionage investigation of the plaintiff, David Tenenbaum, because he was Jewish. Id. at 777. The defendants moved for summary judgment, arguing that they could not defend themselves against the plaintiffs’ “claims without disclosing information protected by the state secrets doctrine.” Id. The district court granted the defendants’ motion and the Sixth Circuit affirmed stating:
We further conclude that Defendants cannot defend their conduct with respect to Tenenbaum without revealing the privileged information. Because the state secrets doctrine thus deprives Defendants of a valid defense to the Tenenbaums’ claims, we find that the district court properly dismissed the claims. Tenenbaum, 372 F.3d at 777.
Predictably, the War on Terror of this administration has produced a vast number of cases, in which the state secrets privilege has been invoked. (4) In May of this year, a district court in the Eastern District of Virginia addressed the state secrets privilege in El-Masri v. Tenet, 2006 WL 1391390, (E.D. Va. May 12, 2006). In El Masri, the plaintiff, a German citizen of Lebanese descent, sued the former director of the CIA and others, for their alleged involvement in a program called Extraordinary Rendition. Id. at 1. The court dismissed the plaintiff’s claims, because they could not be fairly litigated without the disclosure of state secrets. (5) Id. at 6.
In Hepting v. AT & T Corp., 2006 WL 2038464, (E.D. Cal. June 20, 2006), which is akin to our inquiry in the instant case, the plaintiffs brought suit, alleging that AT & T Corporation was collaborating with the NSA in a warrantless surveillance program, which illegally tracked the domestic and foreign communications and communication records of millions of Americans. Id. at 1. The United States intervened and moved that the case be dismissed based on the state secrets privilege. Id. Before applying the privilege to the plaintiffs’ claims, the court first examined the information that had already been exposed to the public, which is essentially the same information that has been revealed in the instant case. District Court Judge Vaughn Walker found that the Government had admitted:
…it monitors “contents of communications where *** one party to the communication is outside the United States and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.” (citations omitted). Hepting, 2006 WL 2038464, at 19.
Accordingly Judge Walker reasoned that “[b]ased on these public disclosures,” the court could not “conclude that the existence of a certification regarding the ‘communication content’ program is a state secret.” Id.
Defendants’ assertion of the privilege without any request for answers to any discovery has prompted this court to first analyze this case under Totten/Tenet, since it appears that Defendants are arguing that this case should not be subject to judicial review. As discussed supra, the Totten/Tenet cases provide an absolute bar to any kind of judicial review. Tenet, 544 U.S. at 8. This rule should not be applied in the instant case, however, since the rule applies to actions where there is a secret espionage relationship between the Plaintiff and the Government. Id. at 7-8. It is undisputed that Plaintiffs’ do not claim to be parties to a secret espionage relationship with Defendants. Accordingly, the court finds the Totten/Tenet rule is not applicable to the instant case. The state secrets privilege belongs exclusively to the Executive Branch and thus, it is appropriately invoked by the head of the Executive Branch agency with control over the secrets involved. Reynolds, 345 U.S. at 1. In the instant case, the court is satisfied that the privilege was properly invoked. Defendants’ publicly-filed affidavits from Director of National Intelligence John D. Negroponte and Signal Intelligence Director, NSA Major General Richard J. Quirk, set forth facts supporting the Government’s contention that the state secrets privilege and other legal doctrines required dismissal of the case. Additionally, Defendants filed classified versions of these declarations ex parte and in camera for this court’s review. Defendants also filed ex parte and in camera versions of its brief along with other classified materials, further buttressing its assertion of the privilege. Plaintiffs concede that the public declaration from Director Negroponte satisfies the procedural requirements set forth in Reynolds. Therefore, this court concludes that the privilege has been appropriately invoked.
Defendants argue that Plaintiffs’ claims must be dismissed because Plaintiffs cannot establish standing or a prima facie case for any of its claims without the disclosure of state secrets. Moreover, Defendants argue that even if Plaintiffs are able to establish a prima facie case without revealing protected information, Defendants would be unable to defend this case without the disclosure of such information. Plaintiffs argue that Defendants’ invocation of the state secrets privilege is improper with respect to their challenges to the TSP, since no additional facts are necessary or relevant to the summary adjudication of this case. Alternatively, Plaintiffs argue, that even if the court finds that the privilege was appropriately asserted, the court should use creativity and care to devise methods which would protect the privilege but allow the case to proceed.
The “next step in the judicial inquiry into the validity of the assertion of the privilege is to determine whether the information for which the privilege is claimed qualifies as a state secret.” El Masri, 2006 WL 1391390, at 4. Again, the court acknowledges that it has reviewed all of the materials Defendants submitted ex parte and in camera. After reviewing these materials, the court is convinced that the privilege applies “because a reasonable danger exists that disclosing the information in court proceedings would harm national security interests, or would impair national defense capabilities, disclose intelligence-gathering methods or capabilities, or disrupt diplomatic relations with foreign governments.” Tenenbaum, 372 F.3d at 777.
Plaintiffs, however, maintain that this information is not relevant to the resolution of their claims, since their claims regarding the TSP are based solely on what Defendants have publicly admitted. Indeed, although the instant case appears factually similar to Halkin, in that they both involve plaintiffs challenging the legality of warrantless wiretapping, a key distinction can be drawn. Unlike Halkin or any of the cases in the Reynolds progeny, Plaintiffs here are not seeking any additional discovery to establish their claims challenging the TSP. (6)
Like Judge Walker in Hepting, this court recognizes that simply because a factual statement has been made public it does not necessarily follow that it is true. Hepting, 2006 WL 2038464 at 12. Hence, “in determining whether a factual statement is a secret, the court considers only public admissions or denials by the [G]overnment.” Id. at 13. It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. As the Government has on many occasions confirmed the veracity of these allegations, the state secrets privilege does not apply to this information.
Contrary to Defendants’ arguments, the court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants’ public admissions regarding the TSP. Plaintiffs’ declarations establish that their communications would be monitored under the TSP. (7) Further, Plaintiffs have shown that because of the existence of the TSP, they have suffered a real and concrete harm. Plaintiffs’ declarations state undisputedly that they are stifled in their ability to vigorously conduct research, interact with sources, talk with clients and, in the case of the attorney Plaintiffs, uphold their oath of providing effective and ethical representation of their clients. (8) In addition, Plaintiffs have the additional injury of incurring substantial travel expenses as a result of having to travel and meet with clients and others relevant to their cases. Therefore, the court finds that Plaintiffs need no additional facts to establish a prima facie case for any of their claims questioning the legality of the TSP.
The court, however, is convinced that Plaintiffs cannot establish a prima facie case to support their data-mining claims without the use of privileged information and further litigation of this issue would force the disclosure of the very thing the privilege is designed to protect. Therefore, the court grants Defendants’ motion for summary judgment with respect to this claim. Finally, Defendants assert that they cannot defend this case without the exposure of state secrets. This court disagrees. The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. (9) Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information. Indeed, the court has reviewed the classified information and is of the opinion that this information is not necessary to any viable defense to the TSP. Defendants have presented support for the argument that “it . . is well-established that the President may exercise his statutory and constitutional authority to gather intelligence information about foreign enemies.” (10) Defendants cite to various sources to support this position. Consequently, the court finds Defendants’ argument that they cannot defend this case without the use of classified information to be disingenuous and without merit.
In sum, the court holds that the state secrets privilege applies to Plaintiffs’ data-mining claim and that claim is dismissed. The privilege, however, does not apply to Plaintiffs’ remaining claims challenging the validity of the TSP, since Plaintiffs are not relying on or requesting any classified information to support these claims and Defendants do not need any classified information to mount a defense against these claims. (11)
