Secrecy: State Secrets Privilege: Litigation

Private Defamation Action Dismissed on State Secrets Grounds

By Benjamin Wittes
Thursday, March 26, 2015, 8:35 AM

This is a very interesting case. The other day, federal district judge Edgardo Ramos in New York threw out a defamation lawsuit between two private parties on the government's intervening motion asserting the state secrets privilege. The case is Restis v. American Coalition Against a Nuclear Iran (UANI). The 18-page opinion is worth reading.

Here are some highlights:

According to the [second amended complaint], UANI initiated a “name and shame” campaign against Plaintiffs on May 13, 2013, by sending a public letter to Mr. Restis regarding, inter alia, their purported involvement in the illegal exportation of Iranian oil in violation of international sanctions. Id. ¶ 40. Plaintiffs allege that UANI continued its “name and shame” campaign against them in May 2013, July 2013, and February 2014, through a series of press releases and postings on social media and on UANI’s website. Id. ¶¶ 44-54, 82-106. Plaintiffs seek compensatory and punitive damages, as well as an order requiring the removal of the allegedly defamatory postings from UANI’s website and Facebook page.

. . .

On September 12, 2014, the Government filed a motion, inter alia, to intervene in the instant action on the basis of the state secrets privilege. Doc. 257. At a conference held on October 8, 2014, counsel for Plaintiffs and Defendants indicated that they did not object to the Government’s motion to intervene. Accordingly, on October 9, 2014, the Court entered an order granting the Government’s motion. Doc. 272. The Government has asserted the state secrets privilege and contends that application of the privilege requires the dismissal of the instant action. The Government has submitted classified declarations and documents in support of its assertion of the privilege ex parte for the Court’s in camera review.

. . .

The Court finds that the Government has properly invoked the state secrets privilege in this action. The Government has made a formal assertion of the privilege by submitting a classified declaration by the head of the department which has control over the matter. It is evident to the Court that the declarant asserted the state secrets privilege after careful personal consideration of the matter. The classified declaration describes in great detail the information subject to the state secrets privilege and explains how disclosure of that information could reasonably result in harm to national security. The Court has also held two ex parte, in camera meetings with the Government prior to its assertion of the privilege, during which the information as to which the privilege was being asserted was initially disclosed and discussed. During these meetings, Government attorneys also responded to numerous questions put to them by the Court concerning the substance of the information, the reasons the information constituted state secrets, and the harm to national security if the information were disclosed. Having carefully reviewed the classified declarations and documents submitted by the Government ex parte, and being cognizant of a district court’s obligation to grant “utmost deference” to the executive’s determination of the likely import of disclosure of the information on military or diplomatic security, the Court is satisfied that there is a reasonable danger that disclosure of the facts underlying the Government’s assertion would in fact jeopardize national security. The Court therefore upholds the Government’s assertion of the state secrets privilege.

. . .

Plaintiffs contend that the Government’s assertion of the state secrets privilege in this action is unprecedented because, unlike every other state secrets case, this case is a dispute between private parties with no apparent connection to the Government or to traditionally protected classified information. Pls. Mem. L. 1. According to Plaintiffs and Amici, the Government should not be permitted to rely solely on ex parte submissions for its assertion of the privilege. Id. at 7. Instead, they argue that the Court should order the Government to make “much greater” public disclosure to ensure maximum adherence to the adversarial system, or grant Plaintiffs’ counsel access to the Government’s classified declarations, subject to appropriate clearances. Id. at 7, 11.10 Plaintiffs alternatively suggest that this case could be litigated in an in camera trial. Id. at 15.

The Government, however, argues that public disclosure in state secrets cases concerning the nature of the privilege should be made only to the extent, if at all, practicable under the circumstances without risking disclosure of the information to be protected. Govt. Opp. Mem. L. 1. Accordingly, given the nature of the state secrets at issue here, the Government contends that no information can safely be disclosed on the public record, and that the Court cannot and should not grant access to that information to Plaintiffs’ counsel.11 Id. at 2. Finally, the Government asserts that the need to prevent a significant risk of harm to national security requires dismissal here. Id.12

. . .

The Court recognizes that dismissal is a “harsh sanction.” Bareford, 973 F.2d at 1144; see also Clift, 808 F. Supp. at 111 (dismissing action despite noting that it is a “draconian result”). It is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why. However, dismissal is nonetheless appropriate. Simply put, there is no intermediate solution that would allow this litigation to proceed while also safeguarding the secrets at issue. Cf. Bareford, 973 F.2d at 1144 (noting that “the results are harsh in either direction and the state secret doctrine finds the greater public good—ultimately the less harsh remedy—to be dismissal”); Trulock, 66 F. App’x at 477 (stating that while the court did not take the plaintiff’s alleged reputational damage in defamation action lightly, “[i]n this instance, the public interest in national security must take precedence over allowing [the plaintiff’s] case to proceed”); see also El-Masri, 479 F.3d at 313 (observing that dismissal in state secrets cases occurs because the plaintiff’s personal interest in pursuing his civil claim is subordinated to the collective interest in national security). In any event, while it may be that this case is rare because it involves purely private litigants, it is the nature of the information at issue that guides the state secrets analysis, not the nature or status of the litigants.

Lauren Bateman's prior coverage of the case can be found here and here.