The blogosphere and op-ed pages are abuzz with reaction to yesterday’s big Ninth Circuit decision concerning the state secrets privilege in Mohamed v. Jeppessen Dataplan (if you want an overview of the holding and dissent, see here and here). I was struck in particular by Andrew Sullivan’s especially dire take, which construes the opinion as further evidence that the executive branch cannot be held to account for its national security activities no matter how unlawful or odious. As to the merits of the opinion itself, Andrew observes that
[t]he case yesterday is particularly egregious because it forbade a day in court for torture victims even if only non-classified evidence was used. Think of that for a minute. It shreds any argument that national security is in any way at stake here. It's definitionally not protection of any state secret if all that is relied upon is evidence that is not secret. And so this doctrine has been invoked by Obama not to protect national security but to protect war criminals from the law. There is no other possible interpretation.
No other possible interpretation? I have to disagree with that. I also think, though, that Andrew and others are more concerned with a deeper issue, one that bears more analysis. Let me explain.
First, as to why I don’t agree with Andrew's reading of the opinion. Andrew says that this case by definition involves no state secrets because the plaintiffs proposed to rely only on unclassified information. But the latter does not follow from the former. The point of the majority’s holding was that the subject-matter of the case is such that at least some of the parties inevitably would have to attempt to use protected information in order for the case to be resolved on the merits. Since the plaintiffs were prepared to rely solely on non-protected information, one should read this as a determination that Jeppessen inevitably would have to use protected information in defending the case. And that’s not an outlandish conclusion regarding how the lawsuit inevitably would unfold; it’s difficult to see how Jeppessen could address the plaintiffs’ claims without discussing their alleged relationship to the CIA and the details of the rendition program itself.
The real concern, it seems to me, is the proposition that the privilege should be able to attach in the first place to information that might be secret and sensitive but that also involves alleged illegality. That’s been the state of the law for decades, for better or worse. But we should certainly debate whether this should continue to be the case.
Put simply, the question is whether there should be an exception to the privilege where the information involves alleged law-breaking. The case for having such an exception is obvious enough, and I suspect that at bottom this is the concern that is driving Andrew’s frustration. But let me unpack that argument a bit more, as I think there is an important distinction to be drawn out.
One major strand of concern involves enforcement of the rule of law and democratic accountability. Civil litigation, on this view, is a vehicle for putting a stop to illegal executive branch action. We might simply call this systemic consideration the "rule of law" concern. A separate strand of concern, in contrast, focuses on justice for the aggrieved individual—i.e., making that person whole through civil litigation. This is important, obviously. My sense, however, is that the "rule of law" concern is at the heart of the matter for those, like Andrew, whose criticisms seem to sound particularly loudly in terms of whether the executive branch is unchecked.
In any event, there are two distinct reasons to favor an illegality carve-out. Are there countervailing considerations?
Perhaps some would argue, in effect, that the pursuit of national security is so important that the government simply should not be accountable in court for its action under that heading even when concededly illegal under American law, so long as the action was meant to be secret. Even if we set aside the argument that this approach would actually be bad for national security from a long-term perspective, I would find this position very disturbing, the sort of thing that would justify Andrew’s fears of an unbound Leviathan. So there had best be some other counterargument.
The most plausible counterargument involves the circularity of creating an exception to the privilege for illegality when the whole point of the litigation is to determine if in fact illegality actually occurred. That is to say, it might become impossible to protect legitimately-shielded information if the privilege can be overcome merely by alleging illegality.
Let’s assume, then, that these are the true stakes. Reasonable people can and do differ regarding how to reconcile them. The status quo, reflected in yesterday’s opinion, gives more weight to the protection of information. I think this is defensible, in part because alternative checking mechanisms relatively effectively can address the first strand of concern noted above (e.g., legislative oversight of covert action, statutorily independent inspectors general within departments and agencies, and electoral accountability and civil society pressure insofar as the issue has become known to the public). That is, I think a larger look at the system of which civil litigation is but one part suggests that accountability and rule of law concerns are not getting short shrift. These are not insubstantial checks, especially when taken as a whole. They received a substantial boost, moreover, when the Obama Administration last year adopted procedures requiring, among other things, that assertions of the privilege be screened by senior justice department officials and, in cases involving allegations of government illegality, referrals both to Congress and to the relevant agency’s inspector general.
That said, I think it is fair to say that these alternative mechanisms don’t do as well in addressing the second strand of concerns—involving individual justice/remediation. That is the weakest point in the status quo arrangement. As has long been the case with the state secrets privilege—dating back at least to the 1970s, when lawsuits alleging unlawful spying by the NSA were thrown out on privilege grounds even while Congressional and civil society pressures were dramatically altering the way NSA (and others) did business in the realm of surveillance—the burden falls hardest on the individual litigant. That is no minor thing. My point here is only that it is a different type of concern than the systemic concern with the rule of law and democratic accountability that I think drives much of the debate.