By Bryan Rahija
A new online tool may shed light on the government's use (and abuse?) of the state secrets privilege, an evidentiary rule that allows the executive branch to resist court-ordered disclosure of information during litigation if it believes disclosure would harm national security. The Georgetown Center on National Security and the Law recently unveiled the State Secrets Archives, an online, searchable database of materials related to cases involving the state secrets privilege. POGO caught up with Professor Laura Donohue, who spearheaded the project, to ask her a few questions.
POGO: What's the biggest takeaway you would like the average visitor to get from the State Secrets Archives?
Professor Laura Donohue: The takeaway depends on why the user is going to the Archives. The site is designed to allow users to compile data, look at cross-cuts, and read the primary source documents. So it is a tool that can help users analyze and contribute further to our understanding of state secrets doctrine. Simultaneously, the site is replete with secondary sources that will be particularly helpful both to individuals who already know a substantial amount about the privilege, and who are looking for thoughtful analysis of it, as well as to those who have little or know prior knowledge of the doctrine. The archive provides information on the contours of state secrets and invites users to learn more about how it operates in practice.
POGO: The State Secrets Archives' "About" page says that despite heightened public awareness of the state secrets privilege, "little is known about how it actually works." What is the biggest misconception about the state secrets privilege and how it's used?
LD: The biggest misconception is that published judicial opinions accurately convey how the executive branch is using state secrets. Eighty percent of the appellate courts’ caseload, for instance, is unpublished. Memoranda and orders issued by the courts early in suits may dispose of state secrets cases. And there are numerous voluntary dismissals. In some situations, cases where state secrets is never formally asserted may be treated in a manner consistent with cases where it has been asserted and upheld. What this means is that we have been missing the bulk of the cases that deal with state secrets—and, in the process, missing how the doctrine actually plays out in litigation.
One of the biggest surprises in the research was the degree to which state secrets plays a role throughout litigation—particularly when contractors assert it as an affirmative defense. Because of the emphasis on published judicial opinions, what was being lost was recognition of the degree to which what was previously an executive privilege has become a form of private indemnity, insulating contractors in areas that range from environmental law, breach of contract, and patent disputes to employment law, personal injury and wrongful death.
POGO: What seems to be the most accepted reason to invoke state secrets privilege?
LD: Almost without exception, state secrets invocations that address the identity of intelligence agents are upheld.
POGO: Are there any particularly egregious cases of abuse of the state secrets privilege that visitors should examine in State Secrets Archives?
LD: Mohammed v. Jeppesen presents a particularly concerning scenario, because in it the government is essentially saying that no case alleging torture or cruel, inhuman, or degrading treatment in the context of the U.S. Government’s rendition program, can ever be heard in a court of law. The entire subject matter—despite the seriousness of the charges—is beyond judicial reach. This is remarkable in a liberal, democratic state that claims the rule of law as one of its central values.
There are also a number of other cases, such as situations where contractors overseas have allegedly engaged in behavior that has led to the personal injury or wrongful death of U.S. soldiers. This litigation tends to be particularly protracted and may lead to voluntary dismissals when litigants are unable to afford lengthy court battles.
POGO: State secrets privilege recently came up at a meeting between President Obama and open government advocates. What would you tell President Obama about the state secrets privilege?
LD: A new statute, similar to CIPA, needs to be created in order to prevent serious disputes from remaining beyond the reach of the courts. In many cases, the allegations that are at stake are serious, implicating matters that range from wrongful death to Constitutional violations. Simultaneously, in some circumstances, critical information should not be made public. To reconcile these two concerns, new structures are needed to allow the litigation to proceed.
Laura Donohue is an Associate Professor of Law at Georgetown Law and Acting Director of Georgetown’s Center on National Security and the Law. Her latest paper on state secrets is entitled "The Shadow of State Secrets," and was published in the Penn Law Review in March.
Bryan Rahija edits POGO's blog.