Dispatches from the Creation Wars

In a very important ruling, the 9th Circuit Court of Appeals has rejected the invocation of the state secrets privilege (SSP) by both the Bush and Obama administrations. Both administrations argued that once the state secrets privilege is invoked, the court has to dismiss the case without ever looking at the evidence or hearing legal arguments. A three judge panel rejected that argument, saying that they can only invoke that privilege to prevent the use of specific pieces of evidence in the case.

The crux of the case is whether the SSP is an evidentiary privilege, meaning it applies only to particular items in evidence in a case, or whether it requires that the entire case be dismissed. There are two key cases here, Totten, where a case was dismissed because it involved a secret agreement between the government and a contractor, and Reynolds, where the court only ruled out some specific evidence because it would involve revealing state secrets.


The argument made by both the Bush and Obama administrations in this case was that any case involving classified information could not be heard, period. The court rejected that argument on several grounds. First, they concluded that it was Reynolds that applied here and thus the SSP could only be used to challenge specific evidence in the case:

Successful invocation of the Reynolds privilege does not necessarily require dismissal of the entire suit. Instead, invocation of the privilege requires ” ‘simply that the evidence is unavailable, as though a witness had died [or a document had been destroyed], and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.’ “

And, the court said, the mere fact that evidence is classified cannot be enough to make it off limits for consideration in a suit and make it automatically subject to the SSP:

At base, the government argues here that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government
official. The district court agreed, dismissing the case exclusively because it “involves ‘allegations’ about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit–it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law…

The state secrets privilege operates according to no such assumption–in fact, Reynolds makes clear that “classified” cannot be equated with “secret” within the meaning of the doctrine. If the simple fact that information is classified were enough to bring evidence containing that information within the scope of the privilege, then the entire state secrets inquiry–from determining which matters are secret to which
disclosures pose a threat to national security–would fall exclusively to the Executive Branch, in plain contravention of the Supreme Court’s admonition that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers” without “lead[ing] to intolerable abuses.” 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. It follows that, while classification may be a strong indication of secrecy as a practical matter, 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 privilege.

While this is a very important ruling, it’s only the beginning and not the end. The case is now remanded back to the lower court to hold a trial and how this evidentiary privilege operates will be decided by the same district judge that previously dismissed the case. How that judge handles each evidentiary challenge is vital to the outcome of the case; he could easily rule in favor of the government on every challenge and deny the plaintiffs any opportunity to prove their case. So while this is a positive development, it’s hardly a final victory.

There’s also the question of an appeal of this ruling. This is another big test for the Obama administration. Do they appeal this ruling to the Supreme Court? If they do, they might well win. But filing an appeal would also prove, with absolute finality, that they are every bit as guilty as the Bush administration of seeking to destroy the constitutional checks and balances that prevent the executive branch from doing whatever it wants whenever it wants.

I’ll go this far: if Obama appeals this case to the Supreme Court and continues to advocate for absolute immunity from all judicial scrutiny any time they say something is classified, that will be adequate grounds for impeachment. This issue is that important. We have laws for a reason. We have safeguards in place and statutes that provide for civil proceedings to prevent government abuses. Any president who claims that they have absolute immunity from such proceedings anytime they decide they should has clearly violated their oath to faithfully execute the laws and to preserve and protect the constitution. That was true of Bush and it will be equally true of Obama if he goes down that road.