Last week---and in a somewhat unusual development---the Department of Justice filed a motion to intervene, stay, and dismiss a private lawsuit against a non-profit organization, citing the state secrets privilege. In short, the United States believes that the litigation's further progress might risk the release of national security information.
[There are] three possible categories of documents in UANI's possession: (1) those created by UANI itself; (2) those received from third parties other than the Government; and (3) those received from the Government itself. No privilege can apply to the first two categories, and Defendants cannot manufacture a privilege simply by providing these privately created documents to the Government. And with respect to the third category, any privilege that could have applied has been waived if the Government gave them to Defendants.
Absent further disclosure from the Government, the Plaintiffs cannot meaningfully respond to the Government’s claim. The Plaintiffs cannot test whether the supposed evidence at issue is a state secret, and they also cannot test the relevance of that evidence to its case. That is incredibly important, as the Government has sought dismissal. But “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material is dismissal warranted.” Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236, 1244 (4th Cir. 1985). The Plaintiffs plan to advance their claims without using any state secrets, and it is not clear how state secrets could be relevant to the defense. Are the supposed state secrets relevant to all of Plaintiffs’ claims, or could some proceed without implicating state secrets? What element of the claims do the state secrets relate to, and could that be addressed through a stipulation as to that element or by limiting the evidence in some manner? Are state secrets relevant to an affirmative defense and, if so, are Defendants even asserting that defense? Is the relevance of the supposed state secrets to this case so weak, or have the Defendants misused information in their possession, such that the burden of not utilizing that evidence should be shouldered by them? Are alternative remedies to dismissal sufficient?
Although an assertion of the state secrets privilege in private litigation is unusual, it is not unheard of. A 2011 review of pending cases by the Department of Justice said that “Several of the cases in which the privilege was invoked involved purely private litigation — not challenges to Executive Branch conduct.”