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It looks like the DOJ is going to invoke the state secrets privilege after all in the latest CIA torture suit brought by former detainees, marking the first time that the Trump administration will use this powerful legal tool. But in an interesting variation on the typical post-9/11 state secrets cases, this time it is the defendants rather than the plaintiffs who seek to introduce information that the government alleges may harm national security. In a response filed Wednesday to the defendants’ motion to compel depositions of “two purported CIA witnesses,” the DOJ indicated its intention to assert the privilege in opposition to this motion and one other motion to compel the testimony of a CIA witness. The DOJ states that to either confirm or deny the three alleged witnesses’ roles in the detention and interrogation program “would itself disclose classified information.” The formal claim of privilege, which will be filed by March 8, must come from the head of the department that has control over the matter—likely CIA director Mike Pompeo.
The defendants in this case are former CIA contractors James Mitchell and John “Bruce” Jessen, whose role in designing the now-infamous enhanced interrogation program used in black site CIA prisons overseas was detailed in the declassified Executive Summary of the CIA’s Detention and Interrogation Program (SSCI Report). In 2015, the ACLU brought suit under the Alien Tort Statute against Mitchell and Jessen on behalf of Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Gul Rahman (who died in CIA custody), alleging that the two contractors are “directly liable” for acts of torture, non-consensual human experimentation, and war crimes perpetrated against the three men during their time in custody. (For a more complete picture, see our earlier case coverage here and here.)
Under the state secrets doctrine, the U.S. government can seek to exclude evidence from any civil trial by asserting that legal proceedings on the topic risk disclosing sensitive information and pose a threat to national security. Judges may attempt to verify the legitimacy of such assertions through in camera proceedings, but many defer to the executive branch’s judgment on what constitutes a national security secret. Though the exclusion of evidence on national security grounds does not necessarily mandate outright dismissal, in practice, claims focused on sensitive topics like counterterrorism or surveillance frequently don’t survive the invocation of state secrets.
Notably, prior challenges to the legality of CIA interrogation techniques have been thrown out after the government asserted its state secrets privilege, even when the United States was not itself a defendant in the case. This time, the DOJ did not seek to dismiss the case in its initial stages, likely in recognition of the sheer volume of relevant information already in the public domain: In addition to the SSCI Report, other CIA documents on the interrogation and rendition program were released in response to a FOIA suit brought by the ACLU in 2016. Instead, the government joined the suit as an interested party to protect classified information, opposing many of Mitchell and Jessen’s attempts to access additional CIA documents and depose CIA personnel.
Mitchell calls the SSRI Report “misleading,” and claims that he needs additional classified information to prepare a defense. If the court agrees that the excluded information is essential to trying the case, it’s possible that the state secrets privilege could prove fatal to the suit. However, that outcome seems unlikely at this point, particularly in light of the fact that the DOJ is not asking for dismissal.
The Obama administration’s forbearance on asserting the state secrets privilege in Salim v. Mitchell has been the subject of much discussion. After President Bush had been roundly criticized for what some called abuse of the privilege, President Obama’s Attorney General Eric Holder instituted new policy to limit its use in litigation, but critics saw more of the same until this case.
Even before Donald Trump took office, some speculated that his administration might change the legal strategy by invoking the state secrets privilege either to avoid releasing requested information in discovery, or to avoid the litigation altogether. This first use by the Trump administration appears to be relatively narrow, and may represent nothing more than a response to the specific depositions requested by Mitchell and Jessen. In other words, the Obama (or Clinton) administration may have responded identically to these specific motions to compel testimony, using privilege to prevent the release of critical national security information.
Still, it’s worth underscoring that the state secrets privilege is an extremely broad power, one that allows the executive to, in some cases, bypass a judicial check. A more frequent or robust state secrets use by the Trump administration would be in line with the assertions of broad executive power it has made in its first month. It remains to be seen whether an embattled judiciary might dig in its heels and give more teeth to its inquiry into assertions of state secrets in the years ahead.