Challenging the State Secrets Privilege

Two of the highest-profile cases the ACLU is currently pursuing are pending before the federal appellate courts. In 2007 the national office and the ACLU of Northern California filed suit on behalf of five men who were tortured in, variously, Morocco, Egypt, Jordan, and Afghanistan (Mohamed v. Jeppesen DataPlan, Inc., No. 07-2798 (N.D. Cal.)). It was the ACLU's second rendition case; the first was dismissed in March 2007 by the Fourth U.S. Circuit Court of Appeals, based on the government's assertion of the state secrets privilege (El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007)).

In Mohamed, the plaintiffs allege that the defendant, a Boeing subsidiary in San Jose, knowingly handled planning for the CIA's rendition flights carrying detainees to foreign countries for the purpose of torture. One Jeppesen whistleblower, Sean Belcher, said a senior company official even called these "torture flights." The company allegedly facilitated more than 70 such missions in a four-year period.

As in El-Masri, the government responded by invoking the state secrets privilege - established and defined by the U.S. Supreme Court in United States v. Reynolds (345 US 1 (1953)) - and moved for dismissal. "The state secrets privilege is an evidentiary privilege," says Ben Wizner, a member of the ACLU's National Security Project. "The government can invoke this privilege during discovery and at trial to block exposure of specific state and military secrets." But in Mohamed, he says, the Bush administration asserted the privilege with respect to the entire lawsuit.

As in El-Masri, the district court dismissed Mohamed (Mohamed v. Jeppesen DataPlan, Inc., 539 F.Supp. 2d 1128 (N.D. Cal. 2008)). The ACLU appealed to the Ninth Circuit, arguing that the government's theory was overly broad and hoping for a different response on appeal from the new Obama administration. Last September, Attorney General Eric Holder issued a memo that sought to set out "clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."

Though Wizner says the policy statement sounded good, "in court they continued to argue the same position taken by the Bush administration, demanding that lawsuits be dismissed before discovery." In April 2009, however, the Ninth Circuit reversed Mohamed (563 F.3d 992), denying the government's claim and remanding the case to the trial court. That opinion was then amended (579 F.3d 943), after which the government petitioned for en banc review, which was granted in October (586 F.3d 1108). An eleven-member panel heard oral argument in December (2009 WL 5225398) and a decision is pending.

The state secrets privilege also is crucial to another big ACLU case. It was brought in 2006 after a whistleblower at AT&T revealed that the company had assisted the National Security Agency (NSA) in a massive, unauthorized data-mining operation. AT&T technician Mark Klein had found a secret room in one of the company's San Francisco buildings that was filled with "splitters" to duplicate data flowing through fiber-optic cables.

The full extent of the spying is still unknown, but it likely continued in various forms from 2001 to 2007. Klein eventually brought hundreds of pages of evidence to the Electronic Frontier Foundation (EFF) in San Francisco, which filed the first class action (Hepting v. AT&T, No. 06-0672 (N.D. Cal. filed Jan. 31, 2006)). As the extent of warrantless spying became apparent, more than 50 lawsuits were filed against various telecommunications companies and the NSA. Eventually, the cases were coordinated in San Francisco and assigned to U.S. District Judge Vaughn R. Walker (In re Nat'l Sec. Agency Telecomm. Records Litig., J.P.M.L. No. 06-1791).

All the telecom suits alleged violation of the plaintiffs' free speech and association rights under the First Amendment, and violation of their unreasonable search and seizure rights under the Fourth Amendment. The three ACLU affiliates in California jointly filed suit against AT&T (Campbell v. AT&T Comm. of Calif., No. 06-452626 (San Francisco Super. Ct. filed October 27, 2006)). Though some of the individual plaintiffs sought damages of $100 for every day they were under surveillance, the ACLU, as an entity, sought only injunctive relief to halt warrantless spying. The defendants promptly removed the case to federal court, where it was consolidated with the multidistrict spying litigation already on file. The DOJ entered the fray and moved for dismissal, citing the state secrets privilege.

As the lawsuits accumulated, the telecom companies lobbied Congress to grant them retroactive immunity from liability for unauthorized wiretapping. Congress complied, and in July 2008 President Bush signed the FISA Amendments Act (Pub. L. No. 110-261). The amendments grant the companies retroactive immunity as long as the Attorney General certifies - in secret if need be - that collaboration with the telecoms did not occur, was otherwise legal, or had been authorized by the president. Two months later, then?Attorney General Michael Mukasey filed such a certification, effectively clearing all of the defendant companies.

Last June, Judge Walker granted the government's motion for summary judgment and dismissed most of the wiretapping cases (2009 WL 2171061). The ACLU's California affiliates, the Illinois affiliate, and the EFF appealed to the Ninth Circuit. Meanwhile in New York, a trial court dismissed another ACLU class action attacking warrantless spying, but the plaintiffs have appealed (Amnesty Int'l USA v. McConnell, No. 08-6259 (S.D.N.Y.), pending on appeal as Amnesty Int'l USA v. Blair, No. 09-4112 (2nd Cir.)). Decisions are pending in both the Second and Ninth Circuits. -CP

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