Doe v. Central Intelligence Agency

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 CENTRAL INTELLIGENCE AGENCY, LEON E. PANETTA,* [AGENCY NAME
11 REDACTED], UNITED STATES OF AMERICA,

12 Defendants-Appellees.

13 -------------------------------------

14 Before: SACK and PARKER, Circuit Judges, and COTE, District
15 Judge.**

16 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 MARK S. ZAID, Mark S. Zaid, P.C.,
17 Washington, DC, for Plaintiffs-
18 Appellants.

19 SARAH S. NORMAND, Assistant United
20 States Attorney (Michael J. Garcia,
21 United States Attorney for the Southern
22 District of New York, Neil M. Corwin,
23 Assistant United States Attorney, of
24 counsel), New York, NY, for Defendants-
25 Appellees.

2
1 SACK, Circuit Judge:

2 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. The government

9 responded by invoking the state-secrets privilege with respect to

10 allegedly classified information related to the events giving

11 rise to the plaintiffs' claims. It also moved to dismiss on the

12 ground that litigation could proceed no further without

13 disclosure of that information.

14 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. The court thereupon granted the defendants'

20 motion to dismiss.

21 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 un-

3
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. The plaintiffs

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.

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. Under controlling case law, that

14 review was permitted -- perhaps required -- to be conducted ex

15 parte and in camera. We therefore conclude that even if the

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. Moreover, insofar as the plaintiffs

22 argue that the government's classification procedures

1
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 The judgment of the district court is therefore

5 affirmed.

6 BACKGROUND

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. That agreement

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." Id. Plaintiff Jane Doe also has signed

17 various non-disclosure agreements. Pursuant to the plaintiffs'

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. The redactions obscure much of the substance of the

22 plaintiffs' allegations.

23 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 Plaintiff Jane Doe is the wife of a former
4 employee of the CIA who remains in covert
5 status. The other three plaintiffs are the
6 minor children of Jane Doe and her husband.
7 The Complaint alleges that Jane Doe's husband
8 "was summarily separated from his CIA
9 employment," for a reason that is redacted as
10 classified, and "terminated immediately for
11 unspecified reasons." Plaintiffs departed
12 for Foreign Country A, where they currently
13 reside because the CIA has "refused to
14 provide any assistance, medical or
15 otherwise."

16 The Complaint alleges that Plaintiffs are
17 unable to leave Foreign Country A and that
18 Plaintiff Jane Doe is a virtual prisoner in
19 her home. She is "constantly fearful of
20 eventual detection," for a reason that is
21 redacted as classified. Although Plaintiff
22 Jane Doe allegedly receives medical treatment
23 and psychological counseling, she claims that
24 the CIA has "demanded that she not disclose
25 the basis for her apprehension to her medical
26 professionals, while simultaneously refusing
27 to provide her alternative treatment."
28 Plaintiff Jane Doe alleges that she "suffers
29 severe emotional distress producing physical
30 symptoms from fear," and "lives in constant
31 fear;" the reason for her alleged fear is
32 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 The Invocation of the Privilege and the Motion To
4 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. The

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." Formal Claim of State Secrets Privilege by Porter J.

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." 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." Id. ¶ 7. According to Goss,

2
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. Goss

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. 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." Id. ¶ 13.

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." Id. ¶ 6. Goss also stated that unspecified

19 additional classified and purportedly privileged information

20 might be at risk of disclosure through discovery or trial. Id.

21 ¶ 12. Based on the asserted need to keep the information secure,

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.

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. Counsel

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

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. Letter

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. All these requests were denied by

21 the government.

22 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. Pls.'

3 Oppos'n to Defs.' Mot. To Dismiss, June 22, 2006, at 4-5. The

4 opposition characterized that denial as "interference with the

5 attorney-client relationship and deprivation of the plaintiffs'

6 meaningful access to the courts." Id. at 5; see also id. at 2

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 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. See Doe, 2007 WL

16 30099, at *3-*4, 2007 U.S. Dist. LEXIS 201, at *9-*10. The court

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. See id. at *2-*3, 2007 U.S. Dist.

22 LEXIS 201, at *6-*10.

23 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." Id. at *2, 2007 U.S. Dist.

4 LEXIS 201, at *5, *7. The court also rejected the plaintiffs'

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." Id. at *2, 2007 U.S. Dist. LEXIS

9 201, at *5-*6.

10 The plaintiffs appeal.

11 DISCUSSION

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. The government

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. We decline to resolve this issue because we

20 conclude that the court's judgment would survive review under

21 either standard.

22 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). The majority is of the view,

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. We might well, for that

6 reason, give substantial deference to the district court's

7 decision. See, e.g., In re Agent Orange Prod. Liability Litig.,

8 517 F.3d 76, 102 (2d Cir. 2008) ("We review discovery rulings for

9 abuse of discretion."); and cf. Northrop Corp. v. McDonnell

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). In the case

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
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. In order to address this

9 issue, we must first review the legal and procedural context in

10 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 Reynolds involved an FTCA action brought by

15 the widows of civilians who had died in the crash of a B-29

16 bomber that was "testing secret electronic equipment." Id. at 3.

17 They sought discovery of an Air Force investigative report on the

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. Id. at 3-5.

3 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.'" Reynolds v. United States, 192 F.2d 987, 990

11 (3d Cir. 1951) (Maris, J.) ("Reynolds Cir. Op."). Later, on

12 rehearing, the government asserted that disclosure would

13 "seriously hamper[] national security . . . and the development

14 of highly technical and secret military equipment." Id.;

15 Reynolds, 345 U.S. at 4. Based entirely on the government's

16 refusal to produce the report, the district court entered

17 judgment for the plaintiffs. Reynolds, 345 U.S. at 5.

18 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. In the Court of Appeals'

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." Id. The Court of Appeals

14
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. See

4 id. at 995.

5 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." Id. at 996. It held that in evaluating the

9 latter privilege, the district court judge had rightly "directed

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. Id.

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." Id. at

17 997. The court affirmed the judgment for the plaintiffs.

18 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. First, "[t]he privilege belongs to the Government and must

23 be asserted by it; it can neither be claimed nor waived by a

24 private party." Id. Second, it "is not to be lightly invoked."

25 Id. "[T]he head of the department which has control over the

26 matter" must assert it only "after [his or her] personal

15
1 consideration." Id. at 8. Third, "[t]he [district] court itself

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." Id. By analogy to the balance struck on review of

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

10 to the judge before the claim of privilege will be accepted in

11 any case." Id. at 9-10.

12 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." Id. at 10. If the district

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." Id. The Court thus strongly

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.

24 The Court explained:

25 In each case, the showing of necessity [i.e.,
26 the importance of the documents to the
27 plaintiff's case] which is made will
28 determine how far the court should probe in
16
1 satisfying itself that the occasion for
2 invoking the privilege is appropriate. Where
3 there is a strong showing of necessity, the
4 claim of privilege should not be lightly
5 accepted, but even the most compelling
6 necessity cannot overcome the claim of
7 privilege if the court is ultimately
8 satisfied that military secrets are at stake.
9 Id. at 11 (footnote omitted).

10 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." Id. The

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. The claim of privilege was

20 thus correspondingly stronger. Id. at 10. No submission of the

21 accident report for inspection by the trial court was necessary

22 or appropriate. The Court remanded the case to the district

23 court for reconsideration in light of the principles set forth in

24 its opinion. 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. Id. The crucial distinction

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
17
1 judge before the claim of privilege will be accepted in any

2 case." Id. at 10. Judge Maris, and therefore presumably the

3 dissenting Justices, would have held to the contrary that

4 a claim of privilege against disclosing
5 evidence relevant to the issues in a pending
6 law suit involves a justiciable question,
7 traditionally within the competence of the
8 courts, which is to be determined in
9 accordance with the appropriate rules of
10 evidence, upon the submission of the
11 documents in question to the [district] judge
12 for his examination in camera.
13
14 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. We concluded that the district court rightly dismissed

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." 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." Id. at 546. The

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 546-47

10 (internal quotation marks omitted). The court must then address

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. Id. at 547. "In some cases" that effect

14 "may be so drastic as to require dismissal." Id.

15 As the District of Columbia Circuit has observed,

16 the critical feature of the inquiry in
17 evaluating the claim of privilege is not a
18 balancing of ultimate interests at stake in
19 the litigation . . . [but] the
20 determination . . . whether the showing of
21 the harm that might reasonably be seen to
22 flow from disclosure is adequate in a given
23 case to trigger the absolute right to
24 withhold the information sought in that case.

25 Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982). Before such

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
1 in asserting the privilege. See Reynolds, 345 U.S. at 10-11.

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. Id. at 10. Of course, at

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. See id.; see also Zuckerbraun, 935 F.2d at

9 547. "[A] complete abandonment of judicial control would lead to

10 intolerable abuses." Reynolds, 345 U.S. at 8.

11 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. See, e.g.,

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
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. In particular, counsel

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. In addition, counsel was denied access to

26 secure means of communicating with Jane Doe in order to prepare

21
1 an opposition to the government's invocation, and Doe was unable

2 to visit the United States for that purpose. The plaintiffs'

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 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." Reynolds, 345 U.S. at 8

14 (citation omitted). Indeed, the procedure followed here was one

15 with which every Justice on the Reynolds Court apparently would

16 have agreed. 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. Unarguably, then, the

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. The plaintiffs do not

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 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. They do

14 not ask the CIA for access to classified information that is new

15 to them. They seek instead to make use of information they

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. The

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.

23
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. Even if they already know some of it, permitting the

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

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." Sterling, 416 F.3d at 348. The

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 The Ninth Circuit faced a somewhat similar situation in

18 Al-Haramain Islamic Foundation v. Bush, 507 F.3d 1190 (9th Cir.

19 2007). There, the plaintiffs also knew -- in that case as a

20 result of accidental disclosure -- some of the information that

21 the government asserted was a state secret. See id. at 1202-03.

22 The district court and the court of appeals concluded that the

8
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 state-
secrets 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. See id. "Despite th[e] wrinkle" of

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." Id. at 1203.

7 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." Pls.' Br. 21. But the

11 plaintiffs have effectively conceded that there was no

12 infringement of any such right: They admit that counsel "could

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
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. The court, pursuant to Reynolds, dispensed with

4 two fundamental protections for litigants, courts, and the

5 public. First, the district court and the parties lost the

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. 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."). Second, they lost the value of open

13 proceedings and judgments based on public evidence. See, e.g.,

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.' 1 J. Bentham, Rationale of Judicial

22 Evidence 524 (1827)10" (footnote in original, renumbered)).

10
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 As we observed in United States v. Aref, 533 F.3d 72

2 (2d Cir. 2008):

3 Transparency is pivotal to public perception
4 of the judiciary's legitimacy and
5 independence. The political branches of
6 government claim legitimacy by election,
7 judges by reason. Any step that withdraws an
8 element of the judicial process from public
9 view makes the ensuing decision look more
10 like fiat and requires rigorous
11 justification. Hicklin Eng'g, L.C. v.
12 Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
13 Because the Constitution grants the judiciary
14 "neither force nor will, but merely
15 judgment," The Federalist No. 78 (Alexander
16 Hamilton), courts must impede scrutiny of the
17 exercise of that judgment only in the rarest
18 of circumstances. This is especially so when
19 a judicial decision accedes to the requests
20 of a coordinate branch, lest ignorance of the
21 basis for the decision cause the public to
22 doubt that "complete independence of the
23 courts of justice [which] is peculiarly
24 essential in a limited Constitution." Id.

25 Id. at 83.

26 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. The

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 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). In

37 Mohamed, the plaintiffs opposed the invocation of the state-
27
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. Id. at 997-98 (reversing dismissal of

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"). The plaintiffs here do not

14 contend that their claims rest on information that is already

15 publicly available.

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. See, e.g., Mohamed, 563 F.3d at

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"). We therefore reach, and intimate our views on,

26 neither issue.

28
1 CONCLUSION

2 For the foregoing reasons, the judgment of the district

3 court is affirmed.

29