The Secret State Secrets Doctrine?

In denying certiorari today in El-Masri v. United States, the Supreme Court followed its usual custom of publishing no explanation or dissent. As a consequence, for now the Court leaves intact the state secrets doctrine of United States v. Reynolds. Although the Reynolds case upheld Air Force secrets, it did permit claims against the Air Force to go forward based on unclassified information. The case is better known---and relied on by the government these days---for its statement that "even the most compelling necessity cannot overcome the claim of [state secrets] if the court is ultimately satisfied that military secrets are at stake." For that proposition, the Reynolds Court cited Totten v. United States, "where the very subject matter of the action, a contract to perform espionage, was a matter of state secret. The action was dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail over the privilege."

In El-Masri, which involves allegations of abduction, detention and torture by the CIA, the lower courts dismissed the plaintiff's case on the strength of the state secrets doctrine, because there was no way for El-Masri to make out a case without use of the information the government contends is secret. But of course the Supreme Court could have decided questions about the scope of the state secrets doctrine without revealing any state secrets. El-Masri's cert petition, after all is publicly available (here), and it's easy to see the Court having written opinions and dissents that reveal no more than the cert petition. Thus, the state secrets doctrine itself cannot have played a role in the Supreme Court's denial of cert.

Civil libertarians might take some (small) comfort in the fact that no one dissented. It is plausible, is it not, that at least one member of the Court (Justice Stevens, say), would be concerned about a very broad state secrets doctrine, and would therefore publish a dissent from the denial of cert if he thought that by denying cert the Court was tacitly expanding the doctrine. If some procedural aspect of the El-Masri case itself made it a poor vehicle for examining the scope of the state secrets doctrine, then a civil libertarian Justice might simply be waiting for a better vehicle. As noted on Scotusblog, the Court can address the scope of the state secrets doctrine in the NSA electronic eavesdropping case. Not that this will do El-Masri any good.