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Originally posted by FredT
The question is should the courts and plaintiffs be denied access to information? It does not have an easy answer.
The government has an obligation to protect information and its sources in the interests of national security.
By seeking records under the provisions of the Freedom of Information Act (“FOIA”), 5 U.S.C. ' 552
1. "The state secrets privilege is a common law evidentiary rule that allows the government to withhold information from discovery when disclosure would be inimical to national security." Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991). After the privilege is properly invoked, the privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case. See, e.g., In re United States, 872 F.2d 472, 476 (D.C. Cir.) ("Once successfully invoked, the effect of the privilege is completely to remove the evidence from the case."), cert. dismissed, 493 U.S. 960 (1989). In some instances, the case may be able to proceed based solely on non-privileged evidence. See United States v. Reynolds, 345 U.S. 1, 11 (1953) (concluding that, despite the government's assertion of the state secrets privilege to bar certain evidence, "it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets").
In other cases, an action may be dismissed, even if constitutional claims are involved, when a plaintiff cannot establish his case without the use of such information.2 Dismissal is likewise required if the inability to disclose the information deprives the defendant of evidence essential to a defense. See, e.g., Molerio v. FBI, 749 F.2d 815, 825 (1984) (holding that privileged information completely prohibited government from defending its decision not to hire plaintiff).
Petitioners contend that the dismissal of their case violated separation of power principles because they were deprived of a remedy for the claims of unlawful discrimination. Pet. 18-27. Under the state secrets privilege, however, "even the mot 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 action in this case was dismissed only after both courts carefully reviewed the government's assertion of the privilege, as well as the materials filed under seal, and properly determined that the action could not proceed without disclosure of state secrets.
Petitioners also contend that the court of appeals erroneously held that the state secrets privilege extends to cases whose core allegation involves unlawful discrimination by government officials. Pet. 10-15. That contention lacks merit. Contrary to petitioners' suggestion, the court of appeals did not hold that unlawful discrimination itself was a matter of state secret. The court of appeals rather held that dismissal of the case was warranted because the government could not respond to the claims of discrimination in the complaint without revealing state secrets. Pet. App. 13a-14a. That fact-bound application of settled law does not warrant further review by this Court.3
2. Petitioners also err in claiming (Pet. 16-17) that the court of appeals' decision conflicts with In re United States, supra. In re United States merely declined to issue mandamus based on a district court's decision to require the government to make an item-by-item assertion of the privilege with respect to specific information or evidence. Contrary to petitioners' assertion (Pet. 16), In re United States did not hold that the state secrets privilege was unavailable in cases concerning alleged government violation of the law. Indeed, the D.C. Circuit specifically acknowledged that successful invocation of the privilege may result in dismissal of an action, either because the plaintiff cannot prove a claim without disclosure of the privileged information or because, as in this case, "the privileged information, if available to the defendant, would establish a valid defense to the claim." 872 F.2d at 476. That conclusion is entirely consistent with the court of appeals' decision upholding the government's assertion of the privilege.
In claiming the state-secrets privilege, "the government always overreaches," Blanton said. "It always misleads and in some cases it lies, because it believes its authority is at stake.
"The state secrets privilege is not explicitly authorized by the Constitution or Congress, but has been recognized by federal courts as an extension of the president's power since the early 19th Century." Not explicitly authorized by the Constitution, but rather given shape through a series of court decisions.Made by judges.
Secrecy in International and Domestic Policy Making:
The Case for More Sunshine
...secrecy is that secrecy provides the opportunity for special interests to have greater sway... Secrecy is the bedrock of [this] persistent form of corruption, which undermines confidence in democratic governments in so much of the world.