THE STATE SECRETS PRIVILEGE

Undisputed Legal | Process Service 

Wikimedia Foundation, et al. v. National Security Agency, et al. is a lawsuit brought by the American Civil Liberties Union (ACLU) on behest of the Wikimedia Foundation and several other organizations against the National Security Agency (NSA), the United States Department of Justice (DOJ), and other named individuals. The argument that the complaint hinged upon was that the NSA engaged in mass surveillance of Wikipedia users.

The complaint asserts that the monitoring technology, dubbed “Upstream” by the NSA, violates the First Amendment of the United States Constitution, which safeguards free speech, and the Fourth Amendment, which forbids unreasonable searches and seizures.

BACKGROUND

The National Security Agency is headquartered at Fort Meade, Maryland. The action itself was brought in the United States District Court for the District of Maryland. The action was rejected in October 2015 by Judge T. S. Ellis III. Four months later, the Wikimedia Foundation appealed the judgment, going to the Fourth Circuit Court of Appeals. The Court of Appeals upheld the dismissal of all plaintiffs with the exception of the Foundation, whose claims were deemed “plausible” enough to warrant remanding the case to the lower court.

Edward Snowden, a former NSA analyst, disclosed upstream surveillance for the first time in May 2013.   Clapper v. Amnesty International USA, an earlier ACLU suit, was similarly dismissed for lack of standing. In light of some of Snowden’s revelations, including an above-Top Secret NSA presentation that explicitly identified Wikipedia as a target for HTTP monitoring, the Wikimedia Foundation filed a lawsuit against the NSA for breaching its users’ First and Fourth Amendment rights. 

On August 6th, 2015, the defendants filed a request to dismiss, claiming that the plaintiffs have failed to establish convincingly that they were harmed by Upstream’s data gathering and therefore lack standing to sue. The Electronic Frontier Foundation responded by filing an amicus brief on behalf of a coalition of libraries and retailers. On September 25th, 2015, both parties delivered oral arguments at a hearing.

The District Court for the District of Maryland rejected the complaint on October 23, 2015, citing a lack of standing. Judge T. S. Ellis III of the United States District Court found that the plaintiffs could not credibly establish that they were exposed to Upstream monitoring, reiterating the 2013 Clapper v. Amnesty International US ruling. The Foundation maintained that its complaint was justified and that there was no doubt that Upstream monitoring intercepted communications between its user community and the Wikimedia Foundation. The Electronic Frontier Foundation, which filed an amicus brief in support of the plaintiffs, stated that it was perverse to dismiss a suit for lack of proof (standing) when the surveillance program at issue was secret and urged federal courts to address the serious constitutional concerns raised by Upstream surveillance. On February 17th, 2016, the plaintiffs filed an appeal with the United States Court of Appeals for the Fourth Circuit.

On May 23rd, 2017, the Fourth Circuit Court of Appeals reversed a lower court’s rejection of Wikimedia’s allegations. This appeals court determined that the Foundation’s claims of Fourth Amendment breaches were realistic enough to “survive a facial challenge to standing,” noting that the damage that the NSA’s acquisition of personal data might cause was not hypothetical. After that, the case was returned back to the District Court of Maryland, where it was ordered to continue. The court reversed Ellis’ rejection of the other plaintiffs’ lawsuits, ruling that the non-Wikimedia plaintiffs had not presented a convincing argument that their activities were adversely impacted by Upstream’s breadth.

STATUS OF THE WIKIMEDIA’S CASE 

Wikimedia Foundation’s lawsuit was dismissed on December 16th, 2019 by the District Court. This case was thereinafter appealed by the Wikimedia Foundation to the Court of Appeals for the Fourth Circuit, which heard oral arguments on February 14th, 2020. The appeal was heard in March 2021 and once again dismissed in September. The appeals court in the United States upheld the rejection of a lawsuit by the Wikimedia Foundation, which operates Wikipedia and challenged the National Security Agency’s bulk surveillance and examination of foreign internet communications by American citizens.

The central argument that the government maintained was the “state secrets privilege.” Essentially, this meant that an in-depth examination of this matter in court might undermine national security, and therefore, the case was to be dismissed. The 4th Circuit Court of Appeals published this divided ruling on 20th September.

THE REASON FOR DISMISSAL: THE STATE SECRETS PRIVILEGE

United States law precedent established the state secrets privilege as an evidentiary rule. Excluding evidence from a case due to the use of privilege occurs when the government submits affidavits asserting that court proceedings may reveal sensitive information that could put national security at risk. The first case in which the privilege was formally recognized was United States v. Reynolds, a lawsuit involving purported military secrets.

The court seldom undertakes an in-camera review of the material after a claim of “state secrets privilege” to assess whether the application of this concept is warranted. As a consequence, judges issue judgments in which the assertions are unsubstantiated. Due to the protected information being fully withdrawn from the lawsuit, the court must decide whether or not its absence impacts the case.

The state secrets privilege’s intention is to maintain state secrets out of the public eye during civil litigation (in criminal cases, the Classified Information Procedures Act serves the same purpose). When the government is not a party to the lawsuit, it has the same right to intervene and urge the court to exclude evidence relating to state secrets. Even while courts have the authority to scrutinize such information, they often defer to the Executive Branch. Evidence that is protected by the state secrets privilege is not admissible in court. In many cases, the plaintiff is unable to proceed with the lawsuit without the confidential information and decides to abandon it as a result. If the lawsuit involves a state secret, judges have been more likely recently to reject it altogether.

However, it must be known that the claim does not have to be dismissed if the privilege is validly invoked. Instead of dismissing the plaintiffs’ claims, the Supreme Court in Reynolds returned the case for further consideration of whether the claims might continue without the protected evidence. 

However, there has been a great deal of debate over how a case should continue if a claim of privilege is accepted. In their readiness to accept government petitions to dismiss a claim entirely or to allow a case to continue with no repercussions except “those arising from the loss of evidence,” courts have differed significantly throughout the years. Some courts have viewed the implications of a legitimate privilege in a more limited manner, ruling that the privilege simply covers particular protected evidentiary components. Another court has adopted a broader interpretation, saying that the privilege’s constitutional foundations frequently compel deference to executive branch claims and eventually leave a party with no alternative legal recourse. Other courts disagree.

WHAT SETS THE STATE SECRETS PRIVILEGE APART

Although some other legal doctrines are associated with the state secrets privilege, the state secrets privilege is highly differentiated. However, some doctrines that are closely related to the state secrets privilege include [A.] the principle of non-justiciability in predefined situations involving state secrets as was established in the so-called “Totten Rule“; [B.] definite restrictions on the publishing of classified information as clarified in the Pentagon Papers case of New York Times Co. v. United States; and [C.] the use of classified information in criminal cases is governed by the Classified Information Procedures Act

The Wikimedia Foundation expressed its displeasure with the decision on Wednesday and said it was looking into possibilities for an appeal.

Some have argued that the executive branch has abused the privilege in recent years to hide its own embarrassing or illegal behavior, especially in the context of the “war on terror.” So, in reaction to this, the Obama Administration has released a new policy on the state secrets privilege in an effort to increase trust in the federal court system that the  “U.S. government will use the privilege only if it is essential to protect national security or international affairs.” A State Secrets Review Committee and the Attorney General must both approve any decision by an agency to use the privilege in litigation under Attorney General Eric Holder’s new policy. State secrets privileges can no longer be invoked to hide legal violations or administrative errors, avoid “embarrassment,” or “prevent the release of information… which would not reasonably be expected to cause significant harm to national security,” according to the Department of Justice’s new procedures.

The President is constitutionally charged with protecting information relating to national security. The state secrets privilege is not a mere “common law” privilege and sees some roots in the Constitution. This connection was most commonly showcased in United States v. Nixon, wherein the Supreme Court noted the claim of privilege “relates to the effective discharge of the President’s powers, it is constitutionally based.” 

If the privilege is appropriately invoked, it is absolute and the disclosure of the underlying information cannot be compelled by the court. Although a private litigant’s need for the information may be relevant to the amount of deference afforded to the government, “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied” that the privilege is appropriate.

Yet, significant controversy has arisen with respect to the question of how a case should proceed in light of the successful claim of privilege. Courts have varied greatly in their willingness to either dismiss a claim in its entirety or allow a case to proceed “with no consequences save those resulting from the loss of evidence.”  Some courts have taken a more restrained view of the consequences of a valid privilege, holding that the privilege protects only specific pieces of privileged evidence; while others have taken a more expansive view, arguing that the privilege, with its constitutional underpinnings, often requires deference to executive branch assertions and ultimate dismissal. Whether the assertion of the state secrets privilege is fatal to a particular suit or merely excludes privileged evidence from further litigation, is a question that is highly dependent upon the specific facts of the case.

Pursuant to existing state secrets privilege jurisprudence, the valid invocation of the privilege generally may result in the outright dismissal of the case in three circumstances being [A.] wherein  a plaintiff cannot establish a prima facie case without the protected evidence; [B.] where the privilege deprives a litigant of evidence necessary to establish a valid defense; and [C.] outright dismissal pursuant to the state secrets privilege which would be the “very subject matter of the case is a state secret,” and as a result, “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.”

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Sources

1. The original plaintiffs besides the Wikimedia Foundation were the National Association of Criminal Defense Lawyers, Human Rights Watch, Amnesty International USA, the PEN American Center, the Global Fund for Women, The Nation magazine,[9] the Rutherford Institute, and the Washington Office on Latin America.[5

2. Cyrus Farivar – Oct 23, 2015 10:23 pm UTC. “Judge Tosses Wikimedia’s Anti-NSA Lawsuit Because Wikipedia Isn’t Big Enough.” Ars Technica, 23 Oct. 2015, https://arstechnica.com/tech-policy/2015/10/judge-tosses-wikimedias-anti-nsa-lawsuit-because-wikipedia-isnt-big-enough/. 

3. WIKIMEDIA V. NSA – D. MD. OPINION

4. Brigham, Michelle Paulson, and Geoff. “District Court Grants Government’s Motion to Dismiss WIKIMEDIA v. NSA, Appeal Expected.” Diff, 23 Oct. 2015, https://diff.wikimedia.org/2015/10/23/wikimedia-v-nsa-lawsuit-dismissal/. 

5. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138,1144 (2013) (involving a facial challenge to Section 702 of the Foreign Intelligence Surveillance Act);

6. Since Clapper, the government itself has confirmed many of the key facts about NSA’s Upstream surveillance, including that it conducts suspicionless searches. ACLU attorney Patrick Toomey noted the lawsuit is particularly relevant as the plaintiffs engage in “hundreds of billions of international communications” annually. Any program of Upstream surveillance must necessarily sweep up a substantial part of these communications. 

7. NSA monitoring was determined to be “at full throttle” by a U.S. District Court judge in 2015, and the case was dismissed. It was rejected again in 2019 by the lower court, but the 4th U.S. Circuit Court of Appeals brought it back in 2017 and remanded it there.

8. According to Judge Diana Gribbon Motz, the majority decision “stands for a broad proposition: A lawsuit may be dismissed under the state secrets doctrine, after little judicial scrutiny, even if the government bases its sole defenses on far-fetched hypothetical.”

9. Although the district court erred in granting summary judgment to the government as to Wikimedia’s standing, we agree that the state secrets privilege requires the termination of this suit,” Judge Albert Diaz wrote in a majority opinion by the court

10. United States v. Reynolds, 345 U.S. 1 (1953), is a landmark legal case in 1953 that saw the formal recognition of the state secrets privilege, a judicially recognized extension of presidential power.

11. Three employees of the Radio Corporation of America, an Air Force contractor, were killed when a B-29 Superfortress crashed in 1948 in Waycross, Georgia. Their widows brought an action in tort seeking damages in federal court, under the Federal Tort Claims Act. As part of this action, they requested the production of accident reports concerning the crash but were told by the Air Force that the release of such details would threaten national security

12. The Classified Information Procedures Act or CIPA is codified as the third appendix to Title 18 of the U.S. Code, the title concerning crimes and criminal procedures. The U.S. Code citation is 18 U.S.C. App. III. Sections 1-16

13. Non-justiciability concerns whether a court can with constitutional propriety adjudicate on the matter before it or whether such an adjudication would be an infringement by the court of the role which the Constitution has conferred 

14. Totten v. United States, 92 U.S. 105 (1876), is a United States Supreme Court case in which the court ruled on judicial jurisdiction in espionage cases.

15. New York Times Co. v. United States, 403 U.S. 713 (1971), was a landmark decision of the US Supreme Court on the First Amendment. The ruling made it possible for The New York Times and The Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment

16. James Buatti, senior legal manager at the Wikimedia Foundation, said: “In the face of substantial public information concerning NSA monitoring, the court’s rationale puts extreme secrecy claims above Internet user rights.”

17. As the Supreme Court has stated, “[t]he authority to protect such information falls upon the President as the head of the Executive Branch and as Commander in Chief.” 

18. United States v. Nixon, 418 U.S. 683 (1974)

19. In Molerio v. Federal Bureau of Investigation, a job seeker alleged that the Federal Bureau of Investigation (FBI) had disqualified him based upon his father’s political ties to socialist organizations in violation of the applicant’s and his father’s First Amendment rights.  In response, the FBI asserted that it had a lawful reason to disqualify the plaintiff, but claimed that its reason was protected by the state secrets privilege. After reviewing the FBI’s claim in camera, the D.C. Circuit agreed that the evidence of a nondiscriminatory reason was protected and that its

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