Doe v. Central Intelligence Agency, No. 07-0797 (2d Cir. 2009)
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07-0797-cv Doe v. Central Intelligence Agency 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: February 3, 2009 Decided: August 5, 2009) 5 Docket No. 07-0797-cv 6 ------------------------------------- 7 JANE DOE, JANE ROE (minor), SUE DOE (minor), JAMES ROE (minor), 8 Plaintiffs-Appellants, 9 - v. - 10 11 CENTRAL INTELLIGENCE AGENCY, LEON E. PANETTA,* [AGENCY NAME REDACTED], UNITED STATES OF AMERICA, 12 Defendants-Appellees. 13 ------------------------------------- 14 15 Before: 16 SACK and PARKER, Circuit Judges, and COTE, District Judge.** Appeal from a judgment of the United States District 17 Court for the Southern District of New York (Laura Taylor Swain, 18 Judge) dismissing an action by the wife and children of a covert- 19 status former CIA employee following the court's exclusion from 20 evidence of classified information covered by the state-secrets 21 privilege. The plaintiffs argue on appeal (1) that the * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Leon E. Panetta, who became Director of the Central Intelligence Agency on February 13, 2009, has been automatically substituted for former Director Porter J. Goss as a defendant-appellee on this appeal. ** The Honorable Denise Cote, of the United States District Court for the Southern District of New York, sitting by designation. 1 government unconstitutionally interfered with their ability to 2 oppose the government's invocation of the privilege when it 3 denied their counsel access to secure media with which to read, 4 transmit, or record the classified information at issue; and (2) 5 that the government unconstitutionally failed to facilitate 6 secure communications between the plaintiffs, who live in a 7 classified location abroad, and their Washington-based counsel. 8 We conclude (1) that inasmuch as the plaintiffs have no right to 9 use information covered by an assertion of the state-secrets 10 privilege to challenge that assertion, the government did not 11 infringe the plaintiffs' constitutional rights by refusing to 12 facilitate that intended use, and (2) that the government's 13 restrictions did not infringe the plaintiffs' right to 14 communicate with counsel. 15 Affirmed. 16 17 18 MARK S. ZAID, Mark S. Zaid, P.C., Washington, DC, for PlaintiffsAppellants. 19 20 21 22 23 24 25 SARAH S. NORMAND, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, Neil M. Corwin, Assistant United States Attorney, of counsel), New York, NY, for DefendantsAppellees. 2 1 2 SACK, Circuit Judge: The wife and children of a covert-status former 3 employee of the United States Central Intelligence Agency (the 4 "CIA") brought this action in the United States District Court 5 for the Southern District of New York on September 12, 2005, by 6 filing a heavily redacted complaint naming four defendants: the 7 CIA, the director of the CIA, the United States, and another 8 federal agency the identity of which is redacted. 9 responded by invoking the state-secrets privilege with respect to The government 10 allegedly classified information related to the events giving 11 rise to the plaintiffs' claims. 12 ground that litigation could proceed no further without 13 disclosure of that information. 14 It also moved to dismiss on the The district court (Laura Taylor Swain, Judge), having 15 reviewed ex parte and in camera the un-redacted complaint and a 16 classified declaration of the then-director of the CIA explaining 17 why in his opinion the information in question qualified as a 18 state secret, concluded that the government had properly invoked 19 the privilege. 20 motion to dismiss. 21 The court thereupon granted the defendants' The plaintiffs argue on appeal that the government 22 violated their constitutional right of access to the courts by 23 refusing to provide plaintiffs' counsel with secure facilities 24 that would allow counsel to prepare an opposition to the 25 government's assertion of the state-secrets privilege. 26 Specifically, counsel was denied permission to view the un3 1 redacted, classified version of the complaint, which he himself 2 had drafted, and to use secure facilities necessary to prepare 3 and submit at least some of the potentially privileged and 4 classified information to the district court. 5 also assert that inasmuch as Jane Doe is "unable to leave Foreign 6 Country 'A,'" Compl. ¶ 33,1 and counsel is based in Washington, 7 D.C., the government is constitutionally obliged to provide 8 secure facilities to permit Doe and counsel to communicate about 9 these matters by telephone or email. The plaintiffs 10 The plaintiffs have no right to use material that is 11 alleged by the government to contain state secrets in order to 12 participate in the district court's review of the bona fides of 13 the government's allegation. 14 review was permitted -- perhaps required -- to be conducted ex 15 parte and in camera. 16 government, as the plaintiffs allege, "prevented [them] from 17 providing the necessary relevant information to their 18 counsel . . . [and] precluded [their] counsel from drafting and 19 filing a substantive Opposition brief" using that information, 20 Pls.' Br. 6, those actions did not violate the plaintiffs' right 21 of access to the courts. 22 argue that the government's classification procedures 1 Under controlling case law, that We therefore conclude that even if the Moreover, insofar as the plaintiffs According to the redacted complaint, "[b]ecause [name redacted, but presumably Jane Doe's husband] was unemployed, ailing, without medical insurance and in need of medical care, [redacted] he, together with all Plaintiffs, departed the United States for Foreign Country 'A' [redacted]" and "[a]ll Plaintiffs and [redacted] have since continued to reside in Foreign Country 'A.'" Compl. ¶ 29. 4 1 unconstitutionally abridged their right to communicate with 2 counsel, we conclude that the plaintiffs have established no 3 infringement of any such right. 4 5 The judgment of the district court is therefore affirmed. BACKGROUND 6 7 The Plaintiffs' Public Allegations 8 By declaration, the plaintiffs' counsel states that he 9 regularly represents employees and former employees of the CIA, 10 and, in that capacity, has a "secrecy agreement" with the CIA. 11 Decl. of Mark S. Zaid, June 18, 2006, ¶ 3. 12 permits him limited access to some of the classified information 13 known to his clients, but requires him to "submit all 14 [contemplated] substantive . . . court filings to the CIA [before 15 filing] so that it may conduct a classification review of the 16 information therein." 17 various non-disclosure agreements. 18 counsel's agreement, the complaint was redacted to delete 19 references to information the CIA considered to be classified and 20 was filed in redacted form in the public files of the district 21 court. 22 plaintiffs' allegations. Id. That agreement Plaintiff Jane Doe also has signed Pursuant to the plaintiffs' 23 The redactions obscure much of the substance of the For purposes of this appeal, we rely on the district 24 court's description of the redacted complaint in its publicly 25 filed memorandum opinion and order granting the government's 26 motions. Doe v. Cent. Intelligence Agency, No. 05 Civ. 7939 5 1 (LTS)(FM), 2007 WL 30099, at *1, 2007 U.S. Dist. LEXIS 201, at 2 *2-*3 (S.D.N.Y. Jan. 4, 2007). 3 4 5 6 7 8 9 10 11 12 13 14 15 Plaintiff Jane Doe is the wife of a former employee of the CIA who remains in covert status. The other three plaintiffs are the minor children of Jane Doe and her husband. The Complaint alleges that Jane Doe's husband "was summarily separated from his CIA employment," for a reason that is redacted as classified, and "terminated immediately for unspecified reasons." Plaintiffs departed for Foreign Country A, where they currently reside because the CIA has "refused to provide any assistance, medical or otherwise." 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 The Complaint alleges that Plaintiffs are unable to leave Foreign Country A and that Plaintiff Jane Doe is a virtual prisoner in her home. She is "constantly fearful of eventual detection," for a reason that is redacted as classified. Although Plaintiff Jane Doe allegedly receives medical treatment and psychological counseling, she claims that the CIA has "demanded that she not disclose the basis for her apprehension to her medical professionals, while simultaneously refusing to provide her alternative treatment." Plaintiff Jane Doe alleges that she "suffers severe emotional distress producing physical symptoms from fear," and "lives in constant fear;" the reason for her alleged fear is redacted as classified. 33 Id. (citations omitted). The plaintiffs' redacted complaint 34 asserts claims for damages and for injunctive and declaratory 35 relief pursuant to the Administrative Procedures Act, 5 U.S.C. 36 § 701 et seq., the Privacy Act, 5 U.S.C. § 552a et seq., 37 specified federal constitutional provisions, and unspecified New 6 1 York state laws pursuant to the Federal Tort Claims Act ("FTCA"), 2 28 U.S.C. § 2671 et seq.2 3 4 The Invocation of the Privilege and the Motion To Dismiss 5 After the redacted complaint was filed, the government 6 requested, and the district court granted, an extension of 7 several additional months' time within which to respond. 8 government eventually did so, submitting for the court's public 9 files a declaration by Porter J. Goss, the Director of the CIA at 10 the time, asserting "a claim of state secrets privilege over the 11 classified information described in [a supplementary] classified 12 declaration . . . submitted for the Court's ex parte, in camera 13 review." 14 Goss, Director Central Intelligence Agency, Mar. 16, 2006, ¶ 5. 15 Director Goss declared that he was asserting the privilege "as 16 the head of the CIA and after personal consideration of the 17 matter." The Formal Claim of State Secrets Privilege by Porter J. Id. 18 Goss's public declaration did not describe the 19 classified information at issue because, he said, he had 20 "determined that the bases for [the] assertion of the state 21 secrets privilege cannot be filed on the public court record, or 22 in any sealed filing accessible to the plaintiffs or their 23 attorneys, without revealing the very information that [the 24 government sought] to protect." 2 Id. ¶ 7. According to Goss, The plaintiffs inform us that "certain relief for Jane Doe has been obtained through non-judicial means. Thus, not all of her legal claims remain pending." Pls.' Br. 3 n.2. 7 1 "neither plaintiffs nor their attorneys possess the need to know 2 all of the classified information" covered by the privilege 3 assertion, id. ¶ 8, notwithstanding the prior access by the 4 plaintiffs and their counsel to a subset of that information 5 pursuant to their "limited security approvals," id. ¶ 10. 6 based his conclusion on his determination that the information 7 was not necessary for the plaintiffs and counsel "to 'perform or 8 assist in a lawful and authorized governmental function' under 9 Section 4.1(c) of Executive Order 12958," id. ¶ 11. Goss The possible 10 damage from "even an inadvertent slip" was "too great," in Goss's 11 judgment, "to permit disclosure . . . even under protective 12 provisions that the Court might be asked to enter." 13 Id. ¶ 13. According to Goss's public declaration, moreover, "the 14 classified information . . . is so integral to the plaintiffs' 15 claims that further litigation of this matter would necessarily 16 result in the disclosure of such classified information" and 17 "reasonably could be expected to cause serious damage to the 18 national security." 19 additional classified and purportedly privileged information 20 might be at risk of disclosure through discovery or trial. 21 ¶ 12. 22 the government moved to dismiss the action on the ground that the 23 plaintiffs could not establish a prima facie case without access 24 to the information covered by the assertion of the state-secrets 25 privilege, and the defendants could not defend the case without 26 disclosing it. Id. ¶ 6. Goss also stated that unspecified Id. Based on the asserted need to keep the information secure, 8 1 The Plaintiffs' Opposition 2 Following the filing of the government's motion and 3 accompanying papers, the plaintiffs' counsel wrote to the 4 Assistant United States Attorney assigned to the case. 5 requested "reasonable access to an unredacted copy of the 6 Complaint," which counsel had himself prepared and which was 7 apparently in the files of the CIA; CIA-facilitated "secure 8 communication," which would enable him to contact his client "in 9 her present location" with secure telecommunications equipment to Counsel 10 discuss potentially classified information; CIA-facilitated 11 secure transmission between counsel and his clients of documents 12 containing potentially classified information; and access for 13 himself and Jane Doe's spouse to "a CIA computer at a designated 14 location of [the CIA's] choice in order to draft the relevant 15 substantive factual documentation," which he conceded would 16 contain information that the CIA considered classified. 17 of Mark S. Zaid to AUSA Sarah Normand, Apr. 3, 2006, at 1-2. 18 Counsel sought the information in order to support his clients' 19 contemplated opposition to the state-secrets invocation and the 20 defendants' motion to dismiss. 21 the government. 22 Letter All these requests were denied by Notwithstanding the government's continued refusal to 23 provide such assistance, the plaintiffs opposed the government's 24 motions, addressing "not whether the CIA's invocation of the 25 state secrets privilege was appropriate [or whether] the 26 plaintiffs' case must be dismissed in its entirety" as a result, 9 1 but whether "the First Amendment has been violated" by the 2 government's denial of counsel's procedural requests. 3 Oppos'n to Defs.' Mot. To Dismiss, June 22, 2006, at 4-5. 4 opposition characterized that denial as "interference with the 5 attorney-client relationship and deprivation of the plaintiffs' 6 meaningful access to the courts." 7 ("[I]n light of the unconstitutional denial of the plaintiffs' 8 First Amendment right to counsel and meaningful access to this 9 Court, the CIA's Motion must be initially denied without a 10 Pls.' The Id. at 5; see also id. at 2 decision on the merits of the invocation of the privilege."). 11 The District Court's Ruling 12 Upon the district court's ex parte and in camera review 13 of the government's classified submissions and the un-redacted 14 complaint, the court approved the invocation of the state-secrets 15 privilege and granted the motion to dismiss. 16 30099, at *3-*4, 2007 U.S. Dist. LEXIS 201, at *9-*10. 17 concluded that the assertion of the state-secrets privilege was 18 "ripe" despite the absence of counter-submissions by the 19 plaintiffs, that the privilege was properly invoked, and that the 20 action should be dismissed because the very subject matter of the 21 litigation is a state secret. 22 LEXIS 201, at *6-*10. 23 See Doe, 2007 WL The court See id. at *2-*3, 2007 U.S. Dist. The district court rejected the plaintiffs' assertion 24 of a "right to submit classified material to the Court in 25 connection with the Government's claim of the state secrets 26 privilege," concluding that "[t]he disclosure and submission 10 1 right asserted by Plaintiffs would stand on its head the 2 principle that courts are to be protective of material as to 3 which [the] privilege is claimed." 4 LEXIS 201, at *5, *7. 5 "complain[t] that the Government has not facilitated their 6 attorney-client communications concerning classified matters," 7 concluding that that was "not a claim that ha[d] been asserted in 8 the Complaint in this action." 9 201, at *5-*6. 10 Id. at *2, 2007 U.S. Dist. The court also rejected the plaintiffs' Id. at *2, 2007 U.S. Dist. LEXIS The plaintiffs appeal. DISCUSSION 11 12 I. Standard of Review 13 The parties dispute the standard by which we are to 14 review the district court's rejection of the plaintiffs' 15 opposition to the defendants' motion to dismiss. 16 contends that we should review the procedure by which a state- 17 secrets privilege invocation is considered for abuse of 18 discretion; the plaintiffs argue that the proper standard of 19 review is de novo. 20 conclude that the court's judgment would survive review under 21 either standard. 22 The government We decline to resolve this issue because we Were we all in agreement that the merits of the 23 government's invocation of the state-secrets privilege were the 24 question before us, we would likely review the district court's 25 decision de novo on the ground that it was either a question of 26 law or of the application of the law to facts that are not in 11 1 dispute. See, e.g., Hoblock v. Albany County Bd. of Elections, 2 422 F.3d 77 (2d Cir. 2005). 3 however, that the question before us on this appeal is the 4 propriety of the procedures the district court used to obtain the 5 facts necessary to assess the merits. 6 reason, give substantial deference to the district court's 7 decision. 8 517 F.3d 76, 102 (2d Cir. 2008) ("We review discovery rulings for 9 abuse of discretion."); and cf. Northrop Corp. v. McDonnell The majority is of the view, We might well, for that See, e.g., In re Agent Orange Prod. Liability Litig., 10 Douglas Corp., 751 F.2d 395 (D.C. Cir. 1984) (applying abuse of 11 discretion standard to review claims of both procedural and 12 substantive error in state-secrets assessment). 13 before us, however, we need not decide which standard of review 14 to apply inasmuch as we would affirm in any event.1 1 In the case Judge Parker believes that the appropriate standard of review is de novo because the court below simply read the Director's affidavit, invoked Reynolds, held that the state-secret doctrine applied, and dismissed the complaint pursuant to Rule 56. He believes that we are required to review such dismissals de novo. Pilgrim v. Luther, 2009 U.S. App. LEXIS 14588, at *7 (2d Cir. 2009). Since he thinks that this appeal concerns neither the procedures the district court used to determine the application of the privilege, nor the discovery to which litigants contesting the applicability of the privilege may be entitled, he does not believe that the issue of the deference due district courts in such situations is before us. He believes that what the Appellants do contend -- which is that they have the right to use the information that the government has asserted contains state secrets to oppose that assertion in the district court -- presents a question of law that must be reviewed de novo. See Robert Lewis Rosen Assocs. v. Webb, 473 F.3d 498, 503 (2d Cir. 2007). Finally, he believes that even if the subject of this appeal were a district court's choice of procedures (which is manifestly not a discovery issue), the standard of review would still be de novo. See Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, 1000 (9th Cir. 2009) ("We review de novo the interpretation and application of the state secrets 12 1 II. The State-Secrets Privilege 2 Whether the government properly invoked the state- 3 secrets privilege and the district court properly dismissed this 4 action are not questions before us for review because the 5 plaintiffs did not contest those issues in the district court.3 6 The question presented is, instead, whether the actions of the 7 government in the course of invoking the privilege abridged the 8 plaintiffs' constitutional rights. 9 issue, we must first review the legal and procedural context in 10 In order to address this which those challenges are made. 11 In United States v. Reynolds, 345 U.S. 1 (1953), the 12 Supreme Court established the procedure by which federal courts 13 police the government's invocation of the common-law state- 14 secrets privilege.4 15 the widows of civilians who had died in the crash of a B-29 16 bomber that was "testing secret electronic equipment." 17 They sought discovery of an Air Force investigative report on the Reynolds involved an FTCA action brought by Id. at 3. privilege . . . ." (emphasis added)). But see Truock v. Lee, 66 Fed. Appx. 472, 475 (4th Cir. 2003) ("We review for abuse of discretion the district court's choice of procedures to determine whether the privilege applies."). 3 Accordingly, the content of the classified documents submitted by the government to the district court are not relevant to this appeal. We have therefore not reviewed those documents ourselves. 4 "Although there is only a single state secrets evidentiary privilege, as a matter of analysis, courts have approached the privilege as both a rule of non-justiciability, akin to a political question, and as a privilege that may bar proof of a prima facie case." Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1197 (9th Cir. 2007). 13 1 accident and statements provided by surviving members of the 2 airplane's crew. 3 Id. at 3-5. The district court ordered the government to produce 4 the documents for its review. Id. at 5. The government refused, 5 initially not on state-secret grounds, but under regulations 6 which it described as having been "'designed to insure the 7 collection of all pertinent information regarding aircraft 8 accidents in order that all possible measures will be developed 9 for the prevention of accidents and the optimum promotion of 10 flying safety.'" 11 (3d Cir. 1951) (Maris, J.) ("Reynolds Cir. Op."). 12 rehearing, the government asserted that disclosure would 13 "seriously hamper[] national security . . . and the development 14 of highly technical and secret military equipment." 15 Reynolds, 345 U.S. at 4. 16 refusal to produce the report, the district court entered 17 judgment for the plaintiffs. 18 Reynolds v. United States, 192 F.2d 987, 990 Later, on Id.; Based entirely on the government's Reynolds, 345 U.S. at 5. The Third Circuit affirmed, concluding that "the 19 absolute 'housekeeping' privilege" asserted by the government 20 "against disclosing any statements or reports relating to this 21 airplane accident regardless of their contents" did not obtain. 22 Reynolds Cir. Op., 192 F.2d at 994. 23 view, the FTCA's waiver of sovereign immunity meant that Congress 24 had yielded that vague "national" interest to "the greater public 25 interest involved in seeing that justice is done to persons 26 injured by governmental operations." 14 In the Court of Appeals' Id. The Court of Appeals 1 also warned that the existence of such a wide-ranging privilege 2 might allow the government to keep information secret for the 3 sole purpose of avoiding its own embarrassment or liability. 4 id. at 995. 5 See The Court of Appeals distinguished the "'housekeeping' 6 privilege" from the privilege which is properly invoked when "the 7 documents sought to be produced contain state secrets of a 8 military character." 9 latter privilege, the district court judge had rightly "directed Id. at 996. It held that in evaluating the 10 that the documents in question be produced for his personal 11 examination so that he might determine whether all or any part of 12 the documents contain" such confidential information. 13 Although the Court of Appeals thus rejected the contention that 14 the claim of privilege was exempt from judicial review, it noted 15 that "[s]uch examination must obviously be ex parte and in camera 16 if the privilege is not to be lost in its assertion." 17 997. Id. Id. at 18 The court affirmed the judgment for the plaintiffs. The Supreme Court reversed. Addressing only the 19 privilege "against revealing military secrets," Reynolds, 345 20 U.S. at 6-7, the opinion of the Court set forth various 21 "principles which control the application of the privilege," id. 22 at 7. 23 be asserted by it; it can neither be claimed nor waived by a 24 private party." 25 Id. 26 matter" must assert it only "after [his or her] personal First, "[t]he privilege belongs to the Government and must Id. Second, it "is not to be lightly invoked." "[T]he head of the department which has control over the 15 1 consideration." 2 must determine whether the circumstances are appropriate for the 3 claim of privilege," with the caveat that it must do so without 4 "forcing a disclosure of the very thing the privilege is designed 5 to protect." 6 self-incrimination claims, the Court warned that "judicial 7 control over the evidence in a case cannot be abdicated to the 8 caprice of executive officers" but, at the same time, that a 9 trial court may not "automatically require a complete disclosure Id. Id. at 8. Third, "[t]he [district] court itself By analogy to the balance struck on review of 10 to the judge before the claim of privilege will be accepted in 11 any case." 12 Id. at 9-10. The Court concluded that the district court must be 13 "satisf[ied]. . . from all the circumstances of the case[] that 14 there is a reasonable danger that compulsion of the evidence will 15 expose military matters which, in the interest of national 16 security, should not be divulged." 17 court is satisfied that there is such a danger, it "should not 18 jeopardize the security which the privilege is meant to protect 19 by insisting upon an examination of the evidence, even by the 20 judge alone, in chambers." 21 suggested that if the district court is not satisfied by the 22 claim of privilege, it may examine the evidence in question, so 23 long as the review is ex parte and in camera. Id. 24 In each case, the the importance of plaintiff's case] determine how far If the district The Court thus strongly The Court explained: 25 26 27 28 Id. at 10. showing of necessity [i.e., the documents to the which is made will the court should probe in 16 1 2 3 4 5 6 7 8 9 10 satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake. Id. at 11 (footnote omitted). The Reynolds Court concluded, on the facts before it, 11 that once the formal claim of privilege had properly been 12 asserted, "there was certainly a sufficient showing of privilege 13 to cut off further demand for the document on the showing of 14 necessity for its compulsion that had then been made." 15 Court also decided that an offer the government had made to 16 furnish several surviving members of the crashed airplane's crew 17 as witnesses, id., was an "alternative" to disclosure that made 18 the plaintiffs' need for the documents more "dubious" and 19 presumably less necessary, id. at 11. 20 thus correspondingly stronger. 21 accident report for inspection by the trial court was necessary 22 or appropriate. 23 court for reconsideration in light of the principles set forth in 24 its opinion. Id. The The claim of privilege was Id. at 10. No submission of the The Court remanded the case to the district See id. at 12. 25 Justices Black, Frankfurter, and Jackson "dissent[ed] 26 substantially for the reasons set forth in the opinion of Judge 27 Maris" for the Third Circuit. 28 between the majority and dissenting views was thus that the 29 majority refused to "go so far as to say that the [district] 30 court may automatically require a complete disclosure to the Id. 17 The crucial distinction 1 judge before the claim of privilege will be accepted in any 2 case." 3 dissenting Justices, would have held to the contrary that 4 5 6 7 8 9 10 11 12 13 14 Id. at 10. Judge Maris, and therefore presumably the a claim of privilege against disclosing evidence relevant to the issues in a pending law suit involves a justiciable question, traditionally within the competence of the courts, which is to be determined in accordance with the appropriate rules of evidence, upon the submission of the documents in question to the [district] judge for his examination in camera. Reynolds Cir. Op., 192 F.2d at 997 (footnotes omitted). 15 We applied Reynolds in Zuckerbraun v. General Dynamics 16 Corp., 935 F.2d 544 (2d Cir. 1991),6 where we affirmed a district 17 court's dismissal of "a wrongful death action against the 18 manufacturers of a missile defense system that allegedly failed 19 to repel a missile attack upon a United States Navy frigate," id. 20 at 545. 21 the suit because "the government properly invoked the state 22 secrets privilege and thereby prevented [the plaintiff from] 23 establish[ing] a prima facie case." We concluded that the district court rightly dismissed Id. 24 We also summarized the requirements of the privilege: 25 As a procedural matter, "[t]he privilege may be invoked only by 6 The principles recognized in Reynolds may apply differently in the criminal context. See Reynolds, 345 U.S. at 12 (noting that certain issues implicated by criminal trials have "no application in a civil forum where the Government is not the moving party"); see also United States v. Aref, 533 F.3d 72, 79 (2d Cir. 2008), cert. denied, 129 S. Ct. 1582 (2009) ("Reynolds [and two previous Second Circuit decisions] make clear that the [state-secrets] privilege can be overcome when the evidence at issue is material to the [accused's] defense."). Here, of course, we treat only the effect of Reynolds and its progeny on civil proceedings. 18 1 the government and may be asserted even when the government is 2 not a party to the case"; moreover, it "must be claimed by the 3 head of the department with control over the matter in question 4 after personal consideration by that officer." 5 district court must also address the "validity" of the privilege, 6 "satisfying itself that there is a reasonable danger that 7 disclosure of the particular facts in litigation will jeopardize 8 national security," while not compelling "disclosure of the very 9 thing the privilege is designed to protect." Id. at 546. The Id. at 546-47 10 (internal quotation marks omitted). 11 the "effect of an invocation of the privilege," in light of the 12 exclusion of the evidence, on the plaintiff's claim or 13 defendant's defense. 14 "may be so drastic as to require dismissal." Id. at 547. The court must then address "In some cases" that effect Id. 15 As the District of Columbia Circuit has observed, 16 17 18 19 20 21 22 23 24 the critical feature of the inquiry in evaluating the claim of privilege is not a balancing of ultimate interests at stake in the litigation . . . [but] the determination . . . whether the showing of the harm that might reasonably be seen to flow from disclosure is adequate in a given case to trigger the absolute right to withhold the information sought in that case. 25 Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982). 26 a determination can be made, however, the court must first decide 27 how much of a "showing" is required by the government to permit 28 the court to draw conclusions about whether and to what extent 29 there exists a "reasonable danger" of inadvertent disclosure, 30 private "necessity" for the evidence, and governmental "caprice" 19 Before such 1 in asserting the privilege. 2 The trial court may not "automatically" require the government to 3 produce the material for which secrecy is claimed, however, even 4 for perusal of the judge in chambers. 5 the other extreme, it may not undertake an insufficient 6 investigation of the assertion to satisfy itself that actual 7 military secrets are at stake and the danger of their disclosure 8 is reasonably likely. 9 547. 10 11 See Reynolds, 345 U.S. at 10-11. Id. at 10. Of course, at See id.; see also Zuckerbraun, 935 F.2d at "[A] complete abandonment of judicial control would lead to intolerable abuses." Reynolds, 345 U.S. at 8. In some cases, the required scrutiny will be relatively 12 modest, permitting the court to rely on nothing more than the 13 complaint and the government's declaration. 14 Zuckerbraun, 935 F.2d at 547 ("[W]e conclude that it is self- 15 evident," in light of the government's declaration describing the 16 subject matter of the information sought, "that disclosure of 17 secret data and tactics concerning the weapons systems of the 18 most technically advanced and heavily relied upon of our nation's 19 warships may reasonably be viewed as inimical to national 20 security."); Sterling v. Tenet, 416 F.3d 338, 347 (4th Cir. 2005) 21 (accepting district court's reliance on government declaration in 22 approving state-secrets invocation, in light of the "highly 23 classified" nature of covert CIA agent's discrimination and 24 retaliation claims), cert. denied, 346 U.S. 1093 (2006); Ellsberg 25 v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983) ("[W]hen assessing 26 claims of a state secrets privilege, a trial judge properly may 20 See, e.g., 1 rely on affidavits and other secondary sources more often than he 2 might when evaluating assertions of other evidentiary 3 privileges."), cert. denied, 465 U.S. 1038 (1984). 4 Sometimes, however, review may require examination of 5 the classified material itself. See El-Masri v. United States, 6 479 F.3d 296, 305 (4th Cir.) ("In some situations, a court may 7 conduct an in camera examination of the actual information sought 8 to be protected, in order to ascertain that the criteria set 9 forth in Reynolds are fulfilled."), cert. denied, 128 S. Ct. 373 10 (2007); Ellsberg, 709 F.2d at 59 n.37 ("When a litigant must lose 11 if the claim is upheld and the government's assertions are 12 dubious in view of the nature of the information requested and 13 the circumstances surrounding the case, careful in camera 14 examination of the material is not only appropriate, but 15 obligatory." (citations omitted)). 16 III. The Plaintiffs' Contentions 17 The plaintiffs argue that the government 18 unconstitutionally denied their counsel access to the secure 19 media he needed to draft the opposition to the government's 20 assertion of the state-secrets privilege. 21 was refused permission to review the un-redacted classified 22 version of the complaint which he himself had drafted, and to use 23 the secure facilities necessary to prepare and submit at least 24 some of the purportedly privileged and classified information to 25 the district court. 26 secure means of communicating with Jane Doe in order to prepare In particular, counsel In addition, counsel was denied access to 21 1 an opposition to the government's invocation, and Doe was unable 2 to visit the United States for that purpose. 3 principal contention on appeal is that the denial of these 4 requests violated their constitutional right of access to the 5 courts.7 6 The plaintiffs' Following the government's invocation of the state- 7 secrets privilege, the proceedings to determine the validity of 8 that invocation were held by the district court ex parte and in 9 camera. The court was authorized to do so. The Reynolds 10 majority said as much: "The court itself must determine whether 11 the circumstances are appropriate for the claim of privilege, and 12 yet do so without forcing a disclosure of the very thing the 13 privilege is designed to protect." 14 (citation omitted). 15 with which every Justice on the Reynolds Court apparently would 16 have agreed. Reynolds, 345 U.S. at 8 Indeed, the procedure followed here was one Judge Maris's opinion for the Third Circuit, which 7 The plaintiffs locate the source of that right in the First Amendment's Petition Clause, but the constitutional basis for the right appears to be "unsettled." Christopher v. Harbury, 536 U.S. 403, 415 & n.12 (2002). A person's "right of access" to the courts to litigate disputes may arise under, inter alia, the Sixth Amendment right of access [under Waller v. Georgia, 467 U.S. 39, 46 (1984), and its progeny], a First Amendment right to petition for redress, a right of access under the Privileges and Immunities Clause of Article IV, section 2, or the Due Process Clauses of the Fifth and Fourteenth Amendments. Huminski v. Corsones, 396 F.3d 53, 83 & n.31 (2d Cir. 2005). It should not be confused, although it sometimes appears to be, with the First Amendment right of members of the public of access to court proceedings and documents. See id. at 80-85; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980). 22 1 the dissenting Justices substantially adopted, noted that "[the 2 state-secrets] examination must obviously be ex parte and in 3 camera if the privilege is not to be lost in its assertion." 4 Reynolds Cir. Op., 192 F.2d at 997. 5 plaintiffs have no right of access to material that the 6 government contends contains state secrets prior to the district 7 court's adjudication of that contention. 8 create such a right by asserting that they seek access to enable 9 them to argue that the alleged state secrets are not really state 10 Unarguably, then, the The plaintiffs do not secrets. 11 The plaintiffs seek to avoid this bar by asserting that 12 by denying their various requests, the CIA has unlawfully 13 interfered with their ability to prosecute this lawsuit. 14 not ask the CIA for access to classified information that is new 15 to them. 16 already have but which the government nonetheless asserts 17 requires protection against disclosure: inter alia, the identity 18 and history of a covert CIA employee, Jane Doe's husband; the 19 reasons for his termination by the CIA; the termination's effect 20 on the plaintiffs; the identity of "Foreign Country 'A'"; the 21 plaintiffs' circumstances there; and related information. 22 plaintiffs argue that the CIA has made it impossible for them to 23 resist the government's invocation and motion to dismiss by 24 denying their counsel permission to use secure media to view and 25 create documents containing -- and to communicate with them about 26 -- the purportedly privileged information that they already know. They do They seek instead to make use of information they 23 The 1 The plaintiffs misconstrue the limits on their 2 participation in Reynolds proceedings. They do not have the 3 right to use the information that the government has asserted 4 contains state secrets to oppose that assertion in the district 5 court. 6 plaintiffs, through counsel, to use the information to oppose the 7 assertion of privilege may present a danger of "[i]nadvertent 8 disclosure" -- through a leak, for example, or through a failure 9 or mis-use of the secure media that plaintiffs' counsel seeks to Even if they already know some of it, permitting the 10 use, or even through over-disclosure to the district court in 11 camera -- all of which is precisely "the sort of risk that 12 Reynolds attempts to avoid." 13 district court had no obligation to increase the risk of 14 disclosure by permitting the plaintiffs to discuss, transmit, 15 record, or file information asserted to be a state secret by the 16 government.8 17 Sterling, 416 F.3d at 348. The The Ninth Circuit faced a somewhat similar situation in 18 Al-Haramain Islamic Foundation v. Bush, 507 F.3d 1190 (9th Cir. 19 2007). 20 result of accidental disclosure -- some of the information that 21 the government asserted was a state secret. 22 The district court and the court of appeals concluded that the 8 There, the plaintiffs also knew -- in that case as a See id. at 1202-03. There may be cases in which a district judge would act within his or her permissible discretion by permitting the plaintiff's counsel to take a greater role in the court's statesecrets deliberations where, in the circumstances, doing so would not endanger the secrets. We conclude no more than that the court acted properly in deciding otherwise here. 24 1 inadvertent disclosure to the plaintiffs did not make the state 2 secret public information. 3 accidental disclosure to the plaintiffs, the court of appeals 4 said, "we read Reynolds as requiring an in camera [and ex parte] 5 review of the [document containing the information in question] 6 in these circumstances." 7 See id. "Despite th[e] wrinkle" of Id. at 1203. The plaintiffs here contend separately that the 8 government's refusal to facilitate their secure attorney-client 9 communications violated their "First Amendment interest in 10 communicating with an attorney." 11 plaintiffs have effectively conceded that there was no 12 infringement of any such right: 13 have traveled to Jane Doe" to confer with her about the case,9 id. 14 at 4 n.3, and do not dispute that Jane Doe's husband, the 15 individual whose covert status as a former CIA employee is at the 16 center of the government's invocation of the state-secrets 17 privilege, could travel and meet with plaintiffs' counsel in the 18 United States, see Defs.' Br. 38 (citing Complaint). 9 Pls.' Br. 21. But the They admit that counsel "could Hypothetically, were the plaintiffs to plead and prove that their inability to confer with counsel was part of an effort on the part of the CIA to frustrate their ability to bring or pursue an action, they might be able establish a claim under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), or otherwise, see Christopher, 536 U.S. at 413 (recognizing a category of viable lawsuits in which "access to courts" claims are brought to the effect that "systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits"). That issue is not before us, however. The plaintiffs have alleged no facts that would support such a lawsuit here, nor have they sought such relief. 25 1 The parties' frustration with and objection to their 2 exclusion from the Reynolds proceedings in the district court is 3 understandable. 4 two fundamental protections for litigants, courts, and the 5 public. 6 benefit of an adversarial process, which may have informed and 7 sharpened the judicial inquiry and which would have assured each 8 litigant a fair chance to explain, complain, and otherwise be 9 heard. The court, pursuant to Reynolds, dispensed with First, the district court and the parties lost the See, e.g., Franks v. Delaware, 438 U.S. 154, 168 (1978) 10 ("The usual reliance of our legal system on adversary proceedings 11 itself should be an indication that an ex parte inquiry is likely 12 to be less vigorous."). 13 proceedings and judgments based on public evidence. 14 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) 15 (concluding that criminal trials are presumptively public and 16 noting that "'[w]ithout publicity, all other checks are 17 insufficient: in comparison of publicity, all other checks are of 18 small account. . . . [W]hatever other institutions might present 19 themselves in the character of checks, would be found to operate 20 rather as cloaks than checks; as cloaks in reality, as checks 21 only in appearance.' 22 Evidence 524 (1827)10" (footnote in original, renumbered)). 10 Second, they lost the value of open See, e.g., 1 J. Bentham, Rationale of Judicial Bentham also emphasized that open proceedings enhanced the performance of all involved, protected the judge from imputations of dishonesty, and served to educate the public. Rationale of Judicial Evidence 522-525. 26 1 2 As we observed in United States v. Aref, 533 F.3d 72 (2d Cir. 2008): 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Transparency is pivotal to public perception of the judiciary's legitimacy and independence. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification. Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006). Because the Constitution grants the judiciary "neither force nor will, but merely judgment," The Federalist No. 78 (Alexander Hamilton), courts must impede scrutiny of the exercise of that judgment only in the rarest of circumstances. This is especially so when a judicial decision accedes to the requests of a coordinate branch, lest ignorance of the basis for the decision cause the public to doubt that "complete independence of the courts of justice [which] is peculiarly essential in a limited Constitution." Id. Id. at 83. The proceedings at issue here were held ex parte and in 27 camera for good and sufficient reason, however: to ensure that 28 legitimate state secrets were not lost in the process. 29 plaintiffs' rights of access to the courts were not compromised 30 by the district court's refusal to require that the CIA 31 facilitate their use of information covered by an assertion of 32 the state-secrets privilege to challenge that assertion. 33 The Our affirmance of Judge Swain's decision is not 34 affected by the Ninth Circuit's recent rejection of the 35 government's assertion of the state-secrets privilege in Mohamed 36 v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. 2009). 37 Mohamed, the plaintiffs opposed the invocation of the state27 In 1 secrets privilege on the ground that the information they were 2 seeking to offer the court was based in whole or in part on 3 public information. 4 plaintiffs' action which, "[c]iting publicly available evidence . 5 . . claim[ed] they were each processed through the [CIA's] 6 extraordinary rendition program" and also cited "publicly 7 available evidence" that the aircraft company defendant "provided 8 flight planning and logistical support services" to the program). 9 But see El-Masri, 479 F.3d at 308, 311 (affirming dismissal of 10 the complaint on the ground that "the facts that are central to 11 litigating [plaintiff's] action" were state secrets, despite 12 plaintiff's "assertion that the facts essential to his Complaint 13 have largely been made public"). 14 contend that their claims rest on information that is already 15 publicly available. Id. at 997-98 (reversing dismissal of The plaintiffs here do not 16 Similarly, we have no occasion to address whether and 17 to what extent the government could validly refuse to grant the 18 plaintiffs the access they sought to discuss, view, or record 19 classified information not properly covered by an assertion of 20 the state-secrets privilege. 21 1003 (rejecting government's argument that "state secrets form 22 the subject matter of a lawsuit, and therefore require dismissal, 23 any time a complaint contains allegations, the truth or falsity 24 of which has been classified as secret by a government 25 official"). 26 neither issue. See, e.g., Mohamed, 563 F.3d at We therefore reach, and intimate our views on, 28 CONCLUSION 1 2 3 For the foregoing reasons, the judgment of the district court is affirmed. 29
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