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DC Circuit State Secrets Decision

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Secrecy News provides this report on a recent DC Circuit decision on the state secrets doctrine:

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege. The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma. The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004. But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government’s invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case. “In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said. The Court presented its ruling as a straightforward application of established principles, including fairness to the parties. But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege. “The majority’s reversal of the district court’s decision,” wrote Judge Janice Rogers Brown, “pushes this circuit’s state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.” The case was remanded to the district court level for further deliberation. See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007. Coincidentally, the American Bar Association this week adopted a resolution (pdf) urging that “whenever possible,” federal civil cases should not be dismissed “based solely on the state secrets privilege.” The ABA resolution also proposed a set of legislative changes designed “to encourage meaningful judicial review of assertions of the state secrets privilege” and to regulate use of the privilege. A copy of the ABA resolution, adopted August 13, and an accompanying report elaborating on its recommendations may be found here.

DOJ Testimony on Applicability of Espionage Laws to Journalists

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This post at Secrecy News reports on March 2007 remarks made by the Justice Department to Congress imparting DOJ’s view that the federal espionage statutes could be used against journalists who publish leaked information.

The post draws from a March 2007 written submission by the DOJ to Congress supplementing June 2006 testimony regarding disclosure of classified information by the press.

In its written submission the DOJ noted that the federal espionage statutes, 18 U.S.C. §§ 793, 798 do not exempt journalists and by their terms could apply.  The Department noted, however, that journalists were not necessarily a current focus of prosecution and that the DOJ “strongly believes that the best approach is to work cooperatively with journalists to persuade them not to publish classified information that can damage national security.”  Especially interesting is the exchange noted by Secrecy News in which the DOJ emphasizes that improper or unnecessary classification is likely not a defense to prosecution, citing to United States v. Boyce, 594 F.2d 1246 (9th Cir. 1979).  The DOJ also cites to Justice White’s concurring opinion in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713, 740 (1971), as support for the potential for application of the espionage laws to journalists.