Legal View: To kill a state secret

By Scott Forsyth
The Daily Record Newswire

A few columns ago I discussed a new ACLU case challenging the president’s policy of targeting citizens living abroad for killing. Al-Aulaqi v. Obama, No.10-cv-1469 (D.C. Dist. Ct. 2010).

The plaintiff was the father of a citizen whom the president determined was a leader of al-Qaida in the Arabian Peninsula. The son was hiding in Yemen.

The ACLU took a narrow approach, arguing the president lacked the authority under the Fourth and Fifth amendments to target a citizen living outside a war zone, unless the president found the citizen “to present a concrete, specific, and imminent threat to life or physical safety, and there (were) no means other than lethal force that could be reasonably employed to neutralize the threat.”

It relied on a series of police cases involving lethal force.

As expected, the government has moved to dismiss the ACLU lawsuit. It gave several reasons, the broadest of which involves the state secrets doctrine.

The doctrine starts out as a privilege, exempting from disclosure in litigation information “whose secrecy is necessary to the [president’s] military and foreign-affairs responsibilities.”

Those responsibilities are rooted in the Constitution. El-Masri v. United States, 479 F.3d 296, 303 (Fourth Cir. 2007)

The president invokes the privilege, but, as with any claim of privilege, a court must assess the basis for the claim. To quote the Supreme Court, is there “a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged?” U.S. v. Reynolds, 345 U.S. 1, 10 (1953).  The assessment requires an ex parte, in camera investigation of the information alleged to be privileged.

Once a court determines the president has invoked the privilege properly, the information is lost to the opposing party. The need for the information is irrelevant.

The attorney general personally must approve the assertion of the privilege. Courts are supposed to review critically the claim. In practice, several have stated that they must defer to the president’s judgment on matters of national security.

To the government, the ACLU’s entire case is built on state secrets. Does the government maintain a kill list, is the son on the list, what are the criteria for a person getting on and off the list, does the son pose an imminent threat to life or physical safety, and can the government use means other than lethal force to neutralize him all are questions of fact that cannot be answered without extensive probing of government records and leaders.

The records and the leaders’ testimony pertain to “alleged military and intelligence activities directed at combating the terrorist threat to the United States” and is therefore privileged. While non-privileged evidence may be available, the privileged and the non-privileged are too intertwined. To protect the former, the court must reject the entire case.

Being grounds for a dismissal separates the state secret privilege from all other privileges. It becomes a very powerful tool in the hands of a government wanting to block the disclosure of controversial or derogatory information.

As recently as last month, the Ninth Circuit “reluctantly” acquiesced in the government’s  use of the tool, holding that five persons could not sue a Boeing subsidiary that assisted the government in rendering them to foreign countries where they were tortured. Pretrial discovery and a trial “would risk the disclosure” of state secrets. Mohamed v. Jeppeson Dataplan Inc., _F.3d_, 2010 WL 3489913 (Ninth Cir. 2010).

The ACLU will respond to the claim of privilege. The questions do not appear to be so consequential that the answers would impair our national security. Yemen is thousands of miles from the United States. The focus of the lawsuit is on one person and the vindication of his constitutional rights, not al-Qaida in the Arabian Peninsula or any other terrorist organization.

We pride ourselves on the openness of our courts, overlooking the problem of access. The state secrets doctrine is an obstacle to access. Plaintiffs with otherwise meritorious claims cannot have their cases heard at all because the government determines that some but not all of the information necessary to prove the claims is too sensitive.

Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU in Rochester, NY. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

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