My latest FindLaw column discusses last week's ruling by Federal District Judge Vaughn Walker, finding that Al Haramain and its lawyers had made out a sufficient case to establish liability by the government defendants for FISA violations. Much of the column addresses the question of why the Obama Administration has followed in the footsteps of the Bush Administration by taking such a hard line on the state secrets privilege. Here I want to raise a broader question about that privilege itself.
Successful government invocation of the state secrets privilege results in the dismissal of a civil lawsuit even though the plaintiff might well have a meritorious case on the merits. This is an extreme measure, as we can see by contrasting dismissal with two alternatives.
First, there is the possibility of sealing sensitive portions of the case. In Al Haramain, as in other cases, lawyers for the plaintiffs were given top secret clearances and sworn to secrecy. So it must be a very sensitive matter indeed in which this sort of precaution is deemed inadequate. In this regard, consider that before it changed course under political pressure, the Obama Administration was prepared to proceed with civilian criminal trials against KSM et al, even though one might think that the state secrets involved in those trials would have been no less sensitive than those at issue in Al Haramain. The difference, of course, is that in the KSM trial, it's the government that is prosecuting, whereas in Al Haramain, the government actors are the defendants. It would not be entirely surprising if government officials gave more weight to state secrets as a means of killing lawsuits against them than as a reason not to proceed with their own cases.
Second, even for the residual category of cases that cannot proceed because the government does not want secret information revealed, it is not clear why the remedy should be dismissal. In ordinary civil litigation between private parties, courts sometimes estop a party that fails to comply with discovery requests relevant to a particular issue from contesting the other side's view of that issue. E.g., Plaintiff seeks Defendant's bank records to show that Defendant unlawfully converted some asset; even though the sought records are relevant and not privileged, the Defendant refuses to comply; hence, Defendant is not permitted to deny what Plaintiff contends on this point. Now this is a harsh penalty, to be sure, and it's important to note that in my example, the material is not privileged, whereas state secrets are, by definition, privileged. But in a normal case the court is likely to be very skeptical of a claim of privilege that would defeat the opposing side's entire case; in state secrets cases, the courts are likely to be deferential to govt claims of national security. Thus, when, as in Al Haramain, the govt nonetheless loses on its privilege argument, it probably has a very weak state secrets case.