Maher Arar is a Syrian-born Canadian citizen who worked as a software engineer in Massachusetts. In September of 2002, while catching a connecting flight back to Canada at JFK International Airport in New York, he was flagged by security. Federal officials detained him for thirteen days before flying him to Jordan and giving him to Jordanian officials, who in turn gave him to Syrian officials. The Syrian officials kept him in a small prison cell where he was beaten and tortured. They released him over a year later, in October of 2003. He filed suit against the US for the torture, claiming that the Syrians worked with American officials. The government moved to dismiss the case because it involved state secrets, and the district court agreed. A Second Circuit panel affirmed the dismissal, but the Second Circuit is now reconsidering the case en banc.
On April 2, 2009, the American Constitution Society hosted a lunch talk about "Reforming the State Secrets Privilege" by Amanda Frost, a professor of law at American University. The talk is based on a paper co-authored with Justin Florence, and Professor Frost has addressed state secrets previously in a law review article. Today, she discussed the how the application of the state secrets doctrine has changed in recent years.
The state secrets doctrine bars the use of classified evidence relating to national security. The Supreme Court established the doctrine as a matter of federal common law in US v Reynolds, where the Navy refused to divulge an accident report for a plane crash. Since Reynolds did not define many of the contours of the doctrine, its development has been guided by the lower courts. Lower courts have mostly used the doctrine only to bar evidence, not to dismiss cases outright. If the doctrine is only used to keep out evidence, then the case will only be dismissed if the evidence is essential to the plaintiff's prima facie case or if the evidence is essential to the defendant's defense. However, some lower courts have dismissed cases because the subject matter is inherently too sensitive to display in court proceedings. Arar v Ashcroft is an example of this last category (although the court found that a Bivens action was not available because of state secrets considerations rather than directly under the state secrets doctrine). The Supreme Court has only affirmed outright dismissal in cases where an American spy is suing the government over a contract claim (Totten v US (1865) and Tenet v Doe (2005)).
The government has steadily increased the number of state secrets assertions since the 1970s. The Bush Administration especially increased the number of state secrets claims and the aggressiveness of those claims, asking courts to dismiss many more cases outright rather than only asking to exclude evidence. The administration pressed these arguments mainly in cases dealing with the warrantless wiretapping program and in cases of extraordinary rendition (like Arar's). In the warrantless-wiretapping case al-Haramain Islamic Foundation, Inc v Bush, the Obama administration defended the assertions of the Bush Administration claiming the court should dismiss the case outright. Should this expanded use of the doctrine trouble us?
Professor Frost says yes. While many documents should never be revealed in a courtroom on national security grounds, the Supreme Court has consistently stated that judges should not simply take the executive branch's word that it is acting properly. It was discovered many years later that the accident report in Reynolds contained evidence of the government's negligence but nothing whatsoever pertaining to national security; judicial skepticism is important to preserve our system of checks and balances.
What to do? Professor Frost wants to borrow procedures from existing areas of law for handling sensitive documents. The Freedom of Information Act (FOIA) requires government officials contesting the release of requested documents to create an index of each requested document and why that document should not be divulged. While still not revealing the documents, the requirement of specific reasoning by the government permits the opposing side to at least make counterarguments; furthermore, the index prevents government lawyers from unknowingly making an overinclusive assertion of privilege by forcing a consideration of each document. The Classified Information Procedures Act (CIPA) creates safeguards for defendants being prosecuted with confidential information. Sometimes the defendant is given a summary of the confidential document; sometimes the defendant's lawyer is granted a security clearance; sometimes a guardian ad litem is appointed who already has a security clearance. Together, these two statutes demonstrate that judges can be trusted to make decisions about keeping particular documents secret and that we can design procedures that balance secrecy and constitutional rights. We need to implement those procedures in order to protect national security while at the same time achieving justice for those like Maher Arar.