Obama Administration Weighs in on State Secrets, Raising Concern on the Left By ADAM LIPTAK

August 4, 2009
Sidebar
Obama Administration Weighs in on State Secrets, Raising Concern on the Left By ADAM LIPTAK
WASHINGTON

A Supreme Court filing from the Obama administration last month has set off alarm bells on the left.

The filing was a friend-of-the-court brief, and it mostly dealt with an excruciatingly technical question about the attorney-client privilege. But its last five pages were about the state secrets privilege, which was not at issue in the case. That privilege, a favorite tool of the Bush administration, allows the government to shut down lawsuits by invoking national security.

The Obama administration’s brief argued, though no one had asked, that the state secrets privilege was rooted in the Constitution.

The federal government files friend-of-the-court briefs in the Supreme Court all the time, and it is not unusual for it to alert the court to related issues, usually to make sure that the court’s ruling is no broader than it needs to be.

But the filing has raised eyebrows and suspicions among liberals already disappointed that the Obama administration has not rejected a number of legal doctrines associated with the Bush administration.

Jon B. Eisenberg, a lawyer for an Islamic charity in Oregon, said the filing reflected “the good old Bush-Cheney inherent presidential power theory.” Mr. Eisenberg said he suspected that the administration was hoping to use the attorney-client case to invite the Supreme Court to say something helpful to it about state secrets.

Mathew A. Miller, a Justice Department spokesman, said there was no reason for concern.

“The brief says only that the state secrets privilege, along with other governmental privileges, has a constitutional basis,” Mr. Miller said, “which is a position that has been taken by the Department of Justice for many decades under administrations of both parties.”

On the campaign trail and in more recent statements, President Obama has indicated that he wants to limit the use of the state secrets privilege. In courtrooms, however, there has been little evidence of a new approach.

The administration’s brief said the government should be allowed to appeal rulings rejecting the state secrets privilege right away, rather than after the whole case is decided. Rulings concerning the attorney-client privilege, on the other hand, the brief said, should not be subject to immediate appeal.

The differing treatments are warranted, the brief argued, because the state secrets privilege is grounded in the Constitution. But that point is controversial, and the brief’s account of the relevant decisions was incomplete.

A federal judge in San Francisco, for instance, last year rejected a version of the constitutional argument in a case brought by Mr. Eisenberg’s client, Al-Haramain Islamic Foundation. The foundation said it had been subjected to illegal surveillance in the Bush years. Both the Bush and Obama administrations have argued that the charity’s suit must be dismissed under the state secrets privilege.

This is where the issue of the pedigree of the privilege really matters. If the privilege is an ordinary common-law rule of evidence, Congress is probably free to alter it. If it is required by the Constitution, things get more complicated.

The judge in San Francisco, Vaughn R. Walker, ruled that Congress had indeed overridden the state secrets privilege when it enacted the Foreign Intelligence Surveillance Act of 1978. The judge said that by setting up a secret court to consider requests for intelligence surveillance, and by setting up other domestic regulations of foreign intelligence surveillance, “Congress intended for the executive branch to relinquish its near-total control over whether the fact of unlawful surveillance could be protected as a secret.”

The government’s recent brief cited the leading Supreme Court decision on state secrets, United States v. Reynolds in 1953, but it said nothing about Judge Walker’s reading of it.

“Reynolds itself,” Judge Walker wrote, “leaves little room for defendants’ argument that the state secrets privilege is actually rooted in the Constitution.”

The Reynolds case concerned an Air Force accident report. The government refused to turn it over in an injury lawsuit, saying that disclosure of the report would endanger national security by revealing military secrets.

When the report was finally released in 1996, it contained no secrets, but it did show that the deaths of nine men in the crash of a B-29 bomber had been caused by the Air Force’s negligence.

Thus, the first case in which the Supreme Court recognized the state secrets privilege illustrated how problematic it can be. By giving the executive branch close to unilateral power to have lawsuits dismissed on national security grounds, the privilege can become a way to conceal government misconduct.

The recent brief from the Obama administration cited just one decision directly invoking the Constitution as the basis for the state secrets privilege. Other courts have said the state secrets privilege is rooted in the common law.

The decision cited in the brief dismissed a lawsuit from a German citizen, Khaled el-Masri, who said he had been abducted and abused by the Central Intelligence Agency. A report from the Council of Europe substantially confirmed Mr. Masri’s claims.

The state secrets privilege, Judge Robert B. King wrote in 2007 for a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit in Mr. Masri’s case, “performs a function of constitutional significance.”

Mr. Miller, the Justice Department spokesman, cautioned against reading too much into the recent filing. “The brief says nothing about either the scope of the privilege or the ability of Congress to legislate in the area,” Mr. Miller said.

Experts in legal ethics said the solicitor general, who represents the government in the Supreme Court, was not required to cite decisions from lower courts cutting against its position.

But issues as urgent and important as the state secrets privilege deserve particularly considered treatment, as Judge King of the Fourth Circuit recognized.

“This inquiry is a difficult one,” he wrote, “for it pits the judiciary’s search for truth against the executive’s duty to maintain the nation’s security.”

9/11 Case Could Bring Broad Shift on Civil Suits By ADAM LIPTAK

July 21, 2009
Sidebar
9/11 Case Could Bring Broad Shift on Civil Suits By ADAM LIPTAK
WASHINGTON

The most consequential decision of the Supreme Court’s last term got only a little attention when it landed in May. And what attention it got was for the wrong reason.

But the lower courts have certainly understood the significance of the decision, Ashcroft v. Iqbal, which makes it much easier for judges to dismiss civil lawsuits right after they are filed. They have cited it more than 500 times in just the last two months.

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience in the pre-trial fact-finding process called discovery.

Mark Herrmann, a corporate defense lawyer with Jones Day in Chicago, said the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs. On the other hand, information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Courts applying Iqbal have been busy. A federal judge in Connecticut dismissed a disability discrimination suit this month, saying that Iqbal required her to treat the plaintiff’s assertions as implausible. A few days later, the federal appeals court in New York dismissed a breach of contract and securities fraud suit after concluding that its account of the defendants’ asserted wrongdoing was too speculative.

The judge hearing the claims of the falsely accused Duke lacrosse players has asked for briefing on whether their lawsuit against Durham, N.C., can pass muster under Iqbal. But the judge considering a case against John C. Yoo, the former Bush administration lawyer, said it could move forward despite Iqbal because the suit contained specific allegations about Mr. Yoo’s conduct in justifying the use of harsh interrogation methods.

In the Iqbal case itself, Javaid Iqbal, a Pakistani Muslim who was working as a cable television installer on Long Island, said he was subjected to intrusive searches and vicious beatings after being arrested on identity fraud charges two months after the Sept. 11 attacks.

Justice Kennedy said Mr. Iqbal’s suit against two officials had not cleared the plausibility bar. All Mr. Iqbal’s complaint plausibly suggested, Justice Kennedy wrote, “is that the nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available.”

Justice David H. Souter, said the majority had adopted a crabbed view of plausibility and had in the process upended the civil litigation system.

In his dissent in Iqbal, Justice Souter wrote that judges should accept the accusations in a complaint as true “no matter how skeptical the court may be.”

“The sole exception to this rule,” Justice Souter continued, “lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.”

But that is no longer the law. Under the Iqbal decision, federal judges will now decide at the very start of a litigation whether the plaintiff’s accusations ring true, and they will close the courthouse door if they do not.