Court Tells US Gov't That 'State Secrets' Isn't A Magic Wand They Can Wave To Make Embarrassing Cases Go Away

from the good-news dept

Earlier this year, we wrote about the case of Gulet Mohamed, a US citizen who was put on the no fly list and ran into some issues in the Middle East because of that (and by “issues” we mean he was beaten by Kuwaiti officials for wanting to fly home to Virginia). The DOJ was making some nutty arguments, including claiming that the whole case should be thrown out because “state secrets.” This is the usual claim in these kinds of cases. Back in August we noted that the judge, Anthony Trenga, was skeptical of this argument, asking for the DOJ to provide a lot more info to back up its claims (in that post we also noted that the DOJ wanted to pretend that the leaked guidelines for how the no fly list works hadn’t been leaked).

Now the judge has ruled officially and rejected the DOJ’s argument, saying that they can’t just claim “state secrets” and walk away. In the ruling, Judge Trenga makes it clear that while there may be some sensitive information in some documents, the case can move forward without that information being revealed:

Certain of the submitted documents appear to contain confidential, security sensitive information that may fall appropriately within a law enforcement privilege. However, the information presented to date by the defendants in support of the state secrets privilege as to these documents is insufficient to allow the Court to conclude that “there is a reasonable danger” that disclosure of these documents to at least the plaintiffs counsel, under the protections of an adequate protective order, would disclose information that would “expose military matters which, in the interest of national security, should not be divulged.”

More importantly, Judge Trenga notes that the DOJ has to get over this idea that the “state secrets” privilege is some kind of “sovereign immunity” claim that the DOJ can just wave around and have entire cases dismissed:

… the state secrets privilege is a judicially created rule of evidence, not a doctrine of sovereign immunity or non-justiciability, whose applicability and consequences, where applicable, are best considered within a specific context during the actual adjudication of any claims to which it may apply.

That’s a bit of a complex sentence, but it’s basically saying that state secrets may apply to specific bits of evidence, but shouldn’t be used to just toss out an entire case. Kudos for Judge Trenga for not just rolling over when the DOJ said “state secrets.” It would be nice if more judges did the same.

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Comments on “Court Tells US Gov't That 'State Secrets' Isn't A Magic Wand They Can Wave To Make Embarrassing Cases Go Away”

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26 Comments
Pragmatic says:

Re: Re: Re:3 Re:

The Constitution is on its knees because we’re too busy playing partisan games to actually, you know, work together.

If we all just stop cheering for Team Red and Team Blue and stick to the facts we’ll be able to move towards change. Until then, enjoy tyranny. The tyrants will be running the show whichever team is in the White House.

Anonymous Coward says:

Re: Re: Re:3 Re:

Yes! It’s the old ‘blame Obama’ cliche! Funny thing, I don’t see ‘Obama’ anywhere in the article, and the State Secrets doctrine was in effect long before he took office, so tell me again how this has anything at all to do with him?

I’m not saying he’s the best president EVAR! or even that great of one, but let’s not go tossing the green wood onto the fire. We get enough smoke from the government without making our own.

Anonymous Coward says:

Re: Fourth Circuit [was ]

… another court…

From Wikipedia, the free encyclopedia: United States Court of Appeals for the Fourth Circuit

The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:

• …
• Eastern District of Virginia
• …

The Fourth Circuit has a reputation.

Anonymous Coward says:

Re: Re: Fourth Circuit [was ]

The Fourth Circuit has a reputation.

Here’s one of the top Google results for:"fourth circuit" reputation.

Is the 4th Circuit veering back to the center?”, by Sharon McCloskey, North Carolina Policy Watch, February 2013

It’s been nearly a decade since the New York Times profiled the 4th U.S. Circuit Court of Appeals in Richmond—the court of last resort for the vast majority of cases filed in federal courts in North Carolina, South Carolina, Maryland, Virginia and West Virginia—as “the most aggressively conservative federal appeals court in the nation.”

[…more…]

Anonymous Coward says:

‘Kudos for Judge Trenga for not just rolling over when the DOJ said “state secrets.” It would be nice if more judges did the same’

it would be nice if more judges did their damn job and ruled on cases that had been justly conducted, instead of throwing out as much as it can for the most ridiculous reasons, so as to fall in line with what certain industries or the government wants! and how the hell the majority manage to change the constitution etc when they like, how they like, is beyond me!!

art guerrilla (profile) says:

Re: Re:

here’s the thing: do The They ™ need to even bother ‘threatening’ ESPECIALLY someone who is an insider ? ? ?

…or do they just anonymously mention, ‘heh, remember that judge so-and-so who was found with kiddie porn on their ‘puter ? No? Me neither, but I bet they were innocent, too. Have a nice day!’

end of problem

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