The State Secrets Privilege: Preventing the
Disclosure of Sensitive National Security
Information During Civil Litigation
Todd Garvey
Legislative Attorney
Edward C. Liu
Legislative Attorney
March 28, 2011
Congressional Research Service
7-5700
www.crs.gov
R41741
CRS Report for Congress
P
repared for Members and Committees of Congress

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The State Secrets Privilege

Summary
The state secrets privilege is a judicially created evidentiary privilege that allows the federal
government to resist court-ordered disclosure of information during litigation if there is a
reasonable danger that such disclosure would harm the national security of the United States.
Although the common law privilege has a long history, the Supreme Court first described the
modern analytical framework of the state secrets privilege in the 1953 case of United States v.
Reynolds, 345 U.S. 1 (1953). In Reynolds, the Court laid out a two-step procedure to be used
when evaluating a claim of privilege to protect state secrets. First, there must be a formal claim of
privilege, lodged by the head of the department which has control over the matter, after actual
personal consideration by that officer. Second, a court must independently determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect. If the privilege is appropriately
invoked, it is absolute and the disclosure of the underlying information cannot be compelled by
the court.
A valid invocation of the privilege does not necessarily require dismissal of the claim. In
Reynolds, for instance, the Supreme Court did not dismiss the plaintiffs’ claims, but rather
remanded the case to determine whether the claims could proceed absent the privileged evidence.
Yet, significant controversy has arisen with respect to the question of how a case should proceed
in light of a successful claim of privilege. Courts have varied greatly in their willingness to either
grant government motions to 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. In contrast, other courts have taken a more expansive view,
arguing that the privilege, with its constitutional underpinnings, often requires deference to
executive branch assertions and ultimate dismissal. Dismissal of a claim under the privilege often
leaves a party with no other available remedy.
The state secrets privilege arises in a wide array of cases, generally where the government is a
defendant or where the government has intervened in a case between private parties to prevent the
disclosure of state secrets. Recently, the privilege has been characterized by a number of high-
profile assertions—including invocation of the privilege to defend against claims arising from the
government’s “extraordinary rendition” practices, challenges to the terrorist surveillance program,
and claims against various national security agencies for unlawful employment practices. The
government has also intervened and invoked the privilege in a significant number of cases
involving claims against government contractors. The Supreme Court is currently considering a
complex government contracting case that has the potential to impact the consequences of a valid
privilege in cases where the assertion of the privilege acts to inhibit a party’s ability to defend
against an action of the federal government.
This report is intended to present an overview of the protections afforded by the state secrets
privilege; a discussion of some of the many unresolved issues associated with the privilege; and a
selection of high-profile examples of how the privilege has been applied in practice.

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Contents
Introduction ................................................................................................................................ 1
United States v. Reynolds: The Seminal Case............................................................................... 2
Asserting the Privilege .......................................................................................................... 3
Evaluating the Validity of the Privilege ................................................................................. 4
The Consequences of the Privilege: Expansive or Limited? ................................................... 5
Subject Matter Dismissal and the Totten Bar in the Context of
Extraordinary Rendition............................................................................................... 6
Other Examples of the State Secrets Privilege in Practice .......................................................... 10
Terrorist Surveillance Program............................................................................................ 10
FISA, Preemption, and the TSP..................................................................................... 12
Government Contractors ..................................................................................................... 13
Employment Cases.............................................................................................................. 15
Targeted Killing .................................................................................................................. 16
Conclusion................................................................................................................................ 17

Contacts
Author Contact Information ...................................................................................................... 17

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Introduction
The state secrets privilege, primarily a construct of the judiciary that has been derived from
common law,1 is an evidentiary privilege that allows the government to resist court-ordered
disclosure of information2 during civil litigation if there is a reasonable danger that such
disclosure would harm the national security of the United States.3 The privilege belongs to the
government alone, and may be invoked only after personal consideration by the head of the
department with control over the information.4 The validity of the claim is then independently
evaluated by the court after an inquiry that may require in camera review5 of the information
sought to be protected.6 If the court determines that the information in question falls under the
protection of the state secrets privilege, then the information will be considered unavailable, and
the court must determine how or whether the litigation can proceed absent the protected
evidence.7
In recent years, some have suggested that the privilege has been overused by the executive branch
to prevent disclosure of its own questionable, embarrassing, or unlawful conduct—particularly
with respect to the “war on terror.”8 In response, the Obama Administration has issued a new
policy on the state secrets privilege in an attempt to “strengthen public confidence that the U.S.
government will invoke the privilege in court only when genuine and significant harm to national
defense or foreign relations is at stake and only to the extent necessary to safeguard those
interests.”9 Under the policy established by Attorney General Eric Holder, any decision by an
agency to invoke the privilege in litigation must first be reviewed by a State Secrets Review
Committee and receive the personal approval of the Attorney General.10 The new procedures
specifically state that the Department of Justice will not defend an invocation of the state secrets
privilege to conceal “violations of the law” or “administrative error”; avoid “embarrassment”; or

1 See FED. R. EVID. 501.
2 Although the courts have struggled to precisely define what constitutes a state secret, the 9th Circuit has held that the
mere fact that a piece of evidence is classified is “insufficient to establish that the information is privileged.” Mohamed
v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1082 (9th Cir. 2010) (“Although classification may be an indication of the
need for secrecy, treating it as conclusive would trivialize the court’s role …”).
3 For a common law discussion of the privilege, see 8 Wigmore Evidence §§ 2367-2379 (J. McNaughton rev. 1961);
for a more recent description, see EDWARD J. IMWINKELREID, THE NEW WIGMORE: A TREATISE ON EVIDENCE:
EVIDENTIARY PRIVILEGES, ch. 8 (2002). It has also been argued that the privilege is derived “from the President’s
authority over national security, and thus is imbued with ‘constitutional overtones.’” Amanda Frost, The State Secrets
Privilege And Separation Of Powers, 75 FORDHAM L. REV. 1931, 1935 (Mar. 2007). See also, El-Masri v. U.S., 479
F.3d 296 (4th Cir. 2007)(“The state secrets privilege … has a firm foundation in the Constitution, in addition to its basis
in the common law of evidence.”).
4 U.S. v. Reynolds, 345 U.S. 1, 7 (1953)(“The privilege belongs to the Government, and must be asserted by it …”).
5 “In camera review” involves a private review of the evidence by the presiding judge in his chambers.
6 See, Reynolds, 345 U.S. at 8.
7 See, Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1082 (9th Cir. 2010).
8 Editorial, Securing Lawsuits, WASH. POST, May 11, 2009, at A16; Editorial, Unraveling Injustice, N.Y. TIMES, Feb. 5,
2009, at 30; Editorial, Revisit the State Secrets Privilege, PITTSBURGH POST-GAZETTE, Oct. 15, 2007, at B7.
9 Memorandum for Heads of Executive Departments and Agencies, Policies and Procedures Governing Invocation of
the State Secrets Privilege, Eric Holder, Attorney General, Sept. 23, 2009, available at http://legaltimes.typepad.com/
files/ag-memo-re-state-secrets-dated-09-22-09.pdf.
10 Id.
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to “prevent or delay the release of information … which would not reasonably be expected to
cause significant harm to national security.”11
While the state secrets privilege arises in a wide array of cases, recently the privilege has been
characterized by a number of high-profile assertions—including invocation of the privilege to
defend against claims arising from the government’s “extraordinary rendition” practices,
challenges to the terrorist surveillance program, and claims against various national security
agencies for unlawful employment practices. The government has also intervened and invoked
the privilege in a significant number of cases involving claims against government contractors.
This report is intended to present an overview of the protections afforded by the state secrets
privilege; a discussion of some of the many unresolved issues associated with the privilege; and a
selection of high-profile examples of how the privilege has been applied in practice.
United States v. Reynolds: The Seminal Case
Although the common law privilege has an extensive history,12 the Supreme Court first
articulated the modern analytical framework of the state secrets privilege in the 1953 case of
United States v. Reynolds.13 That case involved multiple wrongful death claims brought by the
widows of three civilians who died aboard a military aircraft that crashed while testing secret
electronic equipment. The plaintiffs had sought discovery of the official post-incident report and
survivors’ statements that were in the possession of the Air Force. The Air Force opposed
disclosure of those documents, as the aircraft and its occupants were engaged in a “highly secret
mission of the Air Force” at the time of the crash.14 The federal district court ordered the Air
Force to produce the documents so that it could independently determine whether they contained
privileged information. When the Air Force refused to provide the documents to the court, the
district court ruled in favor of the plaintiffs on the issue of negligence; the court of appeals
subsequently affirmed the district court’s ruling.15
The Supreme Court reversed. In its opinion, the Court laid out a two-step procedure to be used
when evaluating a claim of privilege to protect state secrets. First, “there must be a formal claim
of privilege, lodged by the head of the department which has control over the matter, after actual
personal consideration by that officer.”16 Second, “the court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect.”17 Ultimately, the Reynolds Court

11 Id. (emphasis in original)
12 See, Reynolds, 345 U.S. at 6 (Describing the state secrets privilege as “well established in the law of evidence.”). One
of the earliest appearances of the privilege was in Aaron Burr’s 1807 treason trial. See, Edmonds v. U.S., 323 F. Supp.
2d 65, 70-71 (D.D.C. 2004).
13 345 U.S. 1 (1953).
14 Id. at 5. The Air Force did offer to make the surviving crew available for examination by the plaintiffs. Id.
15 Reynolds v. U.S., 192 F.2d 987 (3d Cir. 1951).
16 Reynolds v. U.S., 345 U.S. 1, 8 (1853).
17 Id. With respect to the facts at hand, the Court noted that the Secretary of the Air Force had filed a formal assertion
of the privilege, and that there was a reasonable danger “that the accident investigation report would contain references
to the secret electronic equipment which was the primary concern of the mission.” Id. at 10. Furthermore, it was
“apparent that these electronic devices must be kept secret if their full military advantage is to be exploited in the
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determined that the Air Force’s invocation of the privilege was valid and that in camera review of
the incident report was not necessary.18 Importantly, the Court did not dismiss the claims, but
rather remanded the case and directed the district court to provide the plaintiffs with the
opportunity to pursue their case without the privileged evidence.19
Asserting the Privilege
The first requirement identified by the Reynolds Court, the assertion of the privilege, is a largely
procedural hurdle to assure that the privilege is not “lightly invoked.”20 Nevertheless, this
requirement is readily met through the written assertion of the privilege by the head of the
department in control of the information in question after “personal consideration.” Furthermore,
the privilege belongs exclusively to the government and therefore cannot be validly asserted by a
private party.21 In cases in which the government is not a party, but the nature of the claim is such
that litigation could potentially lead to the disclosure of secret evidence that would threaten
national security, the government must itself intervene and assert the state secrets privilege.22 It
should be noted, however, that the government’s failure to formally assert the privilege has
previously been excused because strict adherence to the requirement would have had little or no
benefit.23 Finally, most courts have determined that the privilege may be raised at any time. For
instance, the privilege may be raised prospectively at the pleading stage of the litigation, or
during discovery in response to specific requests for information the disclosure of which the
government feels would jeopardize national security.24

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national interests.” Id. Thus, the Court upheld the government’s assertion of the state secrets privilege and barred
discovery of the requested documents by the plaintiffs.
18 Id. at 11.
19 Id. at 12. On remand to the district court, the parties “conducted limited discovery [and] settled their claims for
approximately seventy-five percent of the original judgment.” Herring v. United States, 2004 U.S. Dist. Lexis 18545
(E.D. Pa. 2004). The declassified accident report at issue in Reynolds was obtained in 2000 by the daughter of one of
the original plaintiffs in the case. After discovering that the report did not contain a description of any “secret electronic
equipment” a claim was brought seeking to set aside the settlement on the grounds that the Air Force had committed
fraud on the court in asserting the privilege. A federal district court denied the claim, holding that a review of the
declassified documents did not “suggest that the Air Force intended to deliberately misrepresent the truth or commit a
fraud on the court.” Id. at 14.
20 Reynolds, at 7.
21 Id. (“The privilege belongs to the Government, and must be asserted by it; it can neither be claimed nor waived by a
private party. ”).
22 In practice, it seems that government contractors have attempted to invoke the privilege on their own. See, Laura K.
Donohue, The Shadow of State Secrets, 159 U. Pa. L. Rev. 77, 97 (2010)
23 See, Clift v. U.S., 597 F.2d 826, 828-9 (2d Cir. 1979) (preventing discovery of documents in a patent infringement
suit brought by the inventor of a cryptographic device against the government where the Director of the NSA had
submitted an affidavit stating that disclosing the contents of the documents would be a criminal violation, but had not
formally asserted the state secrets privilege; the court reasoned that imposition of the formal requirement would have
had little or no benefit in this circumstance).
24 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080 (9th Cir. 2010)(“The privilege may be asserted at any
time, even at the pleading stage.”).
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Evaluating the Validity of the Privilege
In contrast to the requirement that the government formally assert the privilege, the requirement
that the court evaluate the validity of the government’s claim often “presents real difficulty.”25
Accordingly, the government “bears the burden of satisfying a reviewing court that the Reynolds
reasonable-danger standard is met.”26 For example, although the Supreme Court’s holding in
Reynolds recognized that it is the role of the judiciary to evaluate the validity of a claim of
privilege, the Court declined to require that courts automatically require inspection of the
underlying information. As the Court noted, “too much judicial inquiry into the claim of privilege
would force disclosure of the thing the privilege was meant to protect, while a complete
abandonment of judicial control would lead to intolerable abuses.”27 Therefore, although the
privilege requires some deference to the executive branch, an independent evaluation of the claim
of privilege is necessary so as not to abdicate control over evidence “to the caprice of executive
officers.”28 In light of this dilemma, the Court chose to chart a middle course, employing a
“formula of compromise” to balance the competing interests of oversight by the judiciary, the
plaintiffs’ need for the evidence, and national security interests.29 Under this scheme, the privilege
should be found valid when the court is satisfied that there is a reasonable danger that disclosure
“will expose military matters which, in the interest of national security, should not be divulged.”30
The thoroughness of a court’s review of the government’s assertion of the state secrets privilege
varies. Generally, the depth of the inquiry corresponds to an evaluation of the opposing party’s
need for the information and the government’s need to prevent disclosure.31 As part of this
balancing, a court may go so far as to require the production of the evidence in question for in
camera review. Under other circumstances, however, the nature of the evidence may be such that
the court is satisfied that the evidence warrants protection based solely on the executive’s
assertions. No matter the depth of the inquiry, once the court is satisfied that the privilege is valid,
it should not further “jeopardize the security which the privilege is meant to protect by insisting
upon an examination of the evidence, even by the judge alone, in chambers.”32
Whether a court can be satisfied without examining the underlying information will also be
influenced by the amount of deference afforded to the government’s representations regarding the
evidence in question. In Reynolds, the Court noted that the necessity of the underlying
information to the litigation will determine “how far the court should probe in satisfying itself
that the occasion for invoking the privilege is appropriate.”33 In the case of Reynolds, the Court
noted that the Air Force had offered to make the surviving crew members available for
examination by the plaintiffs.34 Because of this alternative avenue of information, the Court was
satisfied that the privilege was valid based primarily upon representations made by the

25 Reynolds, 345 U.S. at 8.
26 El-Masri v. U.S., 479 F.3d 296, 305 (4th Cir. 2007).
27 Reynolds, at 8.
28 Id. at 9-10.
29 Id. at 9.
30 Id. at 10.
31 Id. at 11 (“Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted …”).
32 Id.
33 Id. at 11.
34 Id. at 5.
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government regarding the contents of the documents.35 Conversely, less deference to the
government’s representations may be warranted where a private litigant has a strong need for the
information.36
When possible, courts have attempted to “disentangle” privileged evidence from non-privileged
evidence.37 One way to protect privileged information without excluding non-privileged evidence
is to redact sensitive portions of a document rather than barring the entire piece of evidence.
However, some courts have questioned the prudence of using redaction to protect portions of
documents that qualify for protection under the privilege out of a concern that pieces of
“seemingly innocuous” information can create a “mosaic” through which protected information
can be deduced.38 The “mosaic theory” is based on the principle that federal judges are not
properly equipped to determine which pieces of information, when taken together, could result in
the disclosure “of the very thing the privilege is designed to protect.”39 Adherence to the mosaic
theory, however, necessarily results in broad deference to the assertions of intelligence agencies.
The Consequences of the Privilege: Expansive or Limited?
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.40 Still, a valid invocation of the privilege does not
necessarily require dismissal of the claim.41 In Reynolds, for instance, the Supreme Court did not
dismiss the plaintiffs’ claims, but rather remanded the case to determine whether the claims could
proceed absent the privileged evidence. 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.”42 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.43 Whether the assertion of the

35 Id. at 11.
36 See, e.g., Molerio v. FBI, 749 F.2d 815, 822 (D.C. Cir. 1984) (in camera examination of classified information was
appropriate where it was central to litigation); Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d at 1203-1204 (“We
reviewed the Sealed Document in camera because of [plaintiff’s] admittedly substantial need for the document to
establish its case”).
37 Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).
38 Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998) (“[I]f seemingly innocuous information is part of a …
mosaic, the state secrets privilege may be invoked to bar its disclosure and the court cannot order the government to
disentangle this information from other information.”).
39 Reynolds, at 8.
40 Id. at 11.
41 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1079 (9th Cir. 2010) (“Unlike the Totten bar, a valid claim of
privilege under Reynolds does not automatically require dismissal of the case.”)
42 Id. at 1082.
43 Compare, Ellsberg v. Mitchell, 708 F.2d 51 (D.C. Cir. 1983)(reversing a lower court dismissal under the privilege)
with El-Masri v. U.S., 479 F.3d 296, 305 (4th Cir. 2007) (dismissing the claim in light of a valid assertion of the
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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.44 The first class
of cases in which a claim is generally dismissed is those cases in which a plaintiff cannot
establish a prima facie case without the protected evidence.45 For example, in Halkin v. Helms,
the D.C. Circuit was confronted with a claim of privilege regarding the National Security
Agency’s alleged interception of international communications to and from persons who had been
targeted by the Central Intelligence Agency.46 After deciding that the claim of privilege was valid,
the D.C. Circuit affirmed the protection of that information from discovery.47 Although some non-
privileged evidence that the plaintiffs were targeted by the Central Intelligence Agency (CIA)
existed, the court dismissed the suit after deciding that without the privileged information, the
plaintiffs would not be able to establish a prima facie case of unlawful electronic surveillance.
A case will also generally be dismissed where the privilege deprives a litigant of evidence
necessary to establish a valid defense.48 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 and his father’s First
Amendment rights.49 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 exclusion would deprive the FBI of an available defense.
Therefore, the dismissal of that action was required once the privilege was determined to be
valid.50
Subject Matter Dismissal and the Totten Bar in the Context of
Extraordinary Rendition
Most courts recognize a controversial third category of cases that requires outright dismissal
pursuant to the state secrets privilege. This class of cases includes those where the court
determines that 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.”51 Dismissals under this theory have led to significant confusion and debate, much of

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privilege).
44 Although not a dismissal under the state secrets privilege, the unavailability of an essential, yet privileged, piece of
information may lead a court to dismiss a claim for lack of standing. See, e.g., Al-Haramain Islamic Foundation v.
Bush, 507 F.3d 1190 (9th Cir. 2007).
45 See, e.g., Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998).
46 Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
47 The other evidence of CIA targeting was never claimed to be privileged by the government. Id. at 997.
48 See, e.g., Edmonds v. U.S., 323 F. Supp. 2d 65, 77-79 (D.D.C. July 6, 2004).
49 Molerio v. FBI, 749 F. 2d at 824-825.
50 Id. at 825.
51 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083 (9th Cir. 2010).
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which derives from the proper characterization of an 1876 Supreme Court case entitled Totten v.
United States.52
Totten involved a breach of contract claim brought against the government by the estate of a
former Union Civil War spy for compensation owed for secret wartime espionage services.53 The
Court dismissed the claim noting that “as a general principle [] public policy forbids the
maintenance of any suit in a court of justice, the trial of which would inevitably lead to the
disclosure of matters which the law itself regards as confidential.”54 Thus, under Totten,
controversies over secret espionage contracts may not be reviewed by federal courts.55 The
“Totten bar” was later affirmed in Tenet v. Doe, a Supreme Court case involving a contract claim
against the CIA brought by Cold War era spies.56 Prior to that decision, the exact relevance of the
Totten rule in light of the Court’s intervening decision in Reynolds was unclear. In Tenet, the
Court held that “Totten precludes judicial review in cases such as respondents’ where success
depends upon the existence of their secret espionage relationship with the government.”57 In
reaching its decision, and by limiting Totten to its facts, the Supreme Court arguably affirmed the
distinction between the Totten bar and the Reynolds privilege—holding that the Totten rule had
not been “reduced to an example of the state secrets privilege,” and that “Reynolds therefore
cannot be plausibly read to have replaced the categorical Totten bar with the balancing of the state
secrets evidentiary privilege in the distinct class of cases that depend upon clandestine spy
relationships.”58 Therefore, disputes over contracts for espionage appear to remain a special
category of cases which the courts have no jurisdiction over, and therefore must be “dismissed on
the pleadings without ever reaching the question of evidence.”59
The relationship between the Totten bar and the Reynolds privilege can be interpreted in a number
of different ways. Some courts have attempted to maintain a strict differentiation between Totten
and Reynolds—limiting the severe consequences of the Totten bar to only those cases which
involve proving the existence of a clandestine spy relationship with the federal government.60
Other courts have arguably “conflated” the two doctrines.61 Still others distinguish between Totten

52 92 U.S. 105 (1876).
53 Id.
54 Id. at 107.
55 The Totten bar has been labeled a “rule of non-justiciability, akin to a political question.” See, e.g., Al-Haramain
Islamic Found. Inc. v. Bush, 507 F.3d 1190, 1197 (9th Cir. 2007).
56 544 U.S. 1 (2005).
57 Id. at 8.
58 Id. “The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide
the absolute protection we found necessary in enunciating the Totten rule.” Id. at 11.
59 Id. at 8. Specifically, under Totten, the government need not invoke the state secrets privilege. Id. at 11 (“[R]equiring
the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or
denying relationships with individual plaintiffs”).
60 See, e.g. Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009) (reversed by Mohamed v. Jeppesen
Dataplan, Inc., 614 F.3d 1070, 1087 (9th Cir. 2010)) ; Terkel v. AT&T Corp., 441 F. Supp. 2d 899 (N.D. Ill. 2006);
ACLU v. NSA, 438 F. Supp. 2d 754 (E.D. Mich. 2006).
61 El-Masri v. U.S., 479 F.3d 296 (4th Cir. 2007). See, Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1087 (9th
Cir. 2010) (“[W]e have previously disapproved of El-Masri for conflating the Totten bar’s ‘very subject matter’ inquiry
with the Reynolds privilege.”); Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190 (9th Cir. 2007)(“In other words
[the El-Masri] court merged the concept of “subject matter” with the notion of proof of prima facie case.”). See also,
Carrie Newton Lyons, The State Secrets Privilege: Expanding Its Scope Through Government Misuse, 11 Lewis &
Clark L. Rev. 99 (2007) (noting that courts have expanded the Reynolds privilege “into the realm of Totten, despite the
distinct nature of the Totten privilege …”).
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and Reynolds, while interpreting Totten to have broader application beyond spy contracts,
resulting in a “continuum of analysis” that requires dismissal under the privilege where “the case
cannot be litigated without presenting either a certainty or an unacceptable risk of revealing state
secrets.”62
Recent cases from the U.S. Court of Appeals for the Fourth Circuit and the U.S. Court of Appeals
for the Ninth Circuit can be viewed as exemplifying the varied conclusions federal courts have
reached in ostensibly similar cases. Both cases involved civil claims against various government
officials and private transportation companies associated with the government’s extraordinary
rendition program. “Extraordinary rendition” has been described as a program administered by
the Central Intelligence Agency “to gather intelligence by apprehending foreign nationals
suspected of involvement in terrorist activities and transferring them in secret to foreign countries
for detention and interrogation.”63 El-Masri v. United States involved a claim by Khaled El-Masri
against the CIA and a number of private transportation companies, alleging that the defendants
unlawfully detained and interrogated him in violation of the U.S. Constitution and international
law. El-Masri, a German citizen, alleged he had been detained in Macedonia; turned over to the
CIA; flown to Afghanistan, where he was held in a CIA facility; and then flown to Albania, where
he was released.64 During his ordeal, El-Masri also alleged he was “beaten, drugged, bound, and
blindfolded during transport; confined in a small, unsanitary cell; interrogated several times, and
consistently prevented from communicating with anyone outside the detention facility.”65
Mohammed v. Jeppesen Dataplan involved a claim by five plaintiffs against a subsidiary of
Boeing for violations of the Alien Tort Statute stemming from the company’s role in providing
transportation services for the extraordinary rendition program.66 The plaintiffs alleged that
Jeppesen Dataplan Inc. “provided flight planning and logistical support services to the aircraft
and crew on all of the flights transporting the five plaintiffs among their various locations of
detention and torture.”67 In both El- Masri and Jeppesen, the government asserted the state secrets
privilege and argued that the suits should be dismissed because the issues involved in the lawsuits
could not be litigated without risking disclosure of privileged information.68
In El-Masri, the Fourth Circuit, citing both Totten and Reynolds, asserted that “the Supreme Court
has recognized that some matters are so pervaded by state secrets as to be incapable of judicial
resolution once the privilege has been invoked.”69 Although the court recognized that Totten has
“come to primarily represent a somewhat narrower principal—a categorical bar on actions to
enforce secret contracts for espionage,” the court concluded more broadly that Totten rested on
the general proposition that “a cause cannot be maintained if its trial would inevitably lead to the

62 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1087 (9th Cir. 2010).
63 Id. at 1073. See also, CRS Report RL32890, Renditions: Constraints Imposed by Laws on Torture, by Michael John
Garcia.
64 El-Masri v. U.S., 479 F.3d 296 (4th Cir. 2007).
65 Id. at 300.
66 Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).
67 Id. at 951.
68 El-Masri v. U.S., 479 F.3d at 301. In Jeppesen, the federal government was not initially a defendant, but intervened
in the case to assert the privilege and simultaneously moved to dismiss. Mohamed v. Jeppesen Dataplan, 539 F. Supp.
2d 1128, 1132-1133 (N.D. Cal. 2008).
69 El-Masri, at 306.
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disclosure of privileged information.”70 In the court’s opinion, any attempt by El-Masri to prove
or disprove the allegations in the complaint would necessarily involve disclosing the internal
organization and procedures of the CIA, as well as secret contracts with the transportation
companies. The circuit court thus determined that because the “central facts … that form the
subject matter of El-Masri’s claim [] remain state secrets,” the court was required to dismiss the
suit upon the successful invocation of the privilege by the government.71 The Supreme Court
declined to review the El-Masri decision.72
It is also important to note that in reaching its decision, the Fourth Circuit emphasized the notion
that the state secrets privilege performs a “function of constitutional significance.”73 Prior to the
El-Masri case, the privilege had traditionally been characterized as a common law evidentiary
privilege, rather than a constitutionally based doctrine. The Fourth Circuit opinion, however,
contained express language asserting that the state secrets privilege “has a firm foundation in the
Constitution.”74
In contrast, in Mohammed v. Jeppesen Dataplan, a Ninth Circuit panel initially held that the state
secrets privilege only excluded privileged evidence from discovery or admission at trial, and did
not require the dismissal of the complaint at the pleadings stage.75 While the court recognized that
the exclusion of privileged evidence from discovery might ultimately be fatal to the litigation if it
prevented the plaintiffs from establishing a prima facie case or denied the defendant a valid
defense, the Jeppesen court held that dismissal of a suit on the pleadings based on the “very
subject matter” of the privileged information was not warranted, except in the narrow case of
contracts for espionage barred under Totten.76
In characterizing Totten and Reynolds, the Ninth Circuit noted that “two parallel strands of the
state secrets doctrine have emerged from its relatively thin history.”77 The opinion clearly
distinguished between the Reynolds privilege and the Totten bar, recognizing that dismissal under
the Reynolds privilege was only proper when the privileged evidence prevented the plaintiff from
establishing a prima facie case, or the defendant from establishing a valid defense.78 “Neither
does any Ninth Circuit or Supreme Court case law,” concluded the court, “indicate that the ‘very
subject matter’ of any other kind of law suit is a state secret, apart form the limited factual context
of Totten itself.”79 Limiting Totten to its facts, the Ninth Circuit panel refused to countenance any
expansion of “Totten’s uncompromising dismissal rule beyond secret agreements with the
government.”80

70 Id.
71 Id. at 311.
72 552 U.S. 947 (2007).
73 Id. at 303.
74 Id. at 304.
75 Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009).
76 Id. at 954.
77 Id. at 952.
78 Id. at 958 (“Thus, within the Reynolds framework, dismissal is justified if and only if specific privileged evidence is
itself indispensable to establishing either the truth of the plaintiff’s allegations or a valid defense that would otherwise
be available to the defendant.”).
79 Id. at 954.
80 Id.
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Upon en banc review, however, the panel decision was overturned by a vote of 6-5.81 While
criticizing the Fourth Circuit’s decision in El-Masri as an “erroneous conflation” of the Totten
bar’s “very subject matter” inquiry with the Reynolds privilege, and expressly criticizing Totten as
an ambiguous “judge-made doctrine with extremely harsh consequences,” the court determined
that dismissal was nonetheless required under Reynolds, and not Totten, as there was “no feasible
way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state
secrets.”82
In recognizing this third category of cases requiring dismissal under Reynolds, the Ninth Circuit
noted that there exists a point in which “the Reynolds privilege converges with the Totten bar,” to
form a “continuum of analysis.”83 According to the court, included in the circumstances under
which Reynolds merges with Totten is any case in which litigation would potentially result in an
“unacceptable risk of disclosing state secrets.”84 Plaintiff’s petition for certiorari is currently
pending before the Supreme Court.85
Much confusion remains with respect to the amount of deference owed to the executive branch
once the state secrets privilege is invoked, as well as in determining the proper consequences of a
valid assertion of the privilege. Specifically, courts and commentators continue to disagree as to
the relationship between the Totten bar and the Reynolds privilege and the resulting question of
whether a successful assertion of the privilege requires dismissal of a given claim, or simply the
exclusion of privileged evidence—allowing the party to proceed with his claim through the
submission of other available evidence.
Other Examples of the State Secrets Privilege in
Practice
The United States has invoked the state secrets privilege in a wide array of cases, many of which
have resulted in the outright dismissal of the plaintiffs’ claims. This section of the report provides
a brief overview of a selection of recent, high-profile uses of the privilege.
Terrorist Surveillance Program
The state secrets privilege has played a large role in litigation arising from the Terrorist
Surveillance Program (TSP). The TSP was a Bush Administration program that authorized the
National Security Agency (NSA) to intercept various communications involving U.S. persons
within the United States without first obtaining warrants under the Foreign Intelligence
Surveillance Act (FISA).86 FISA provides a statutory framework for government agencies to seek
an order from the specialized Foreign Intelligence Surveillance Court that authorizes the

81 Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1087 (9th Cir. 2010).
82 Id. at 1084, 1087.
83 Id. at 1083, 1089.
84 Id. at 1079.
85 Petition for a Writ of Certiorari, No. 10-1078 (U.S. filed Dec. 7, 2010).
86 See, CRS Report R40980, Government Collection of Private Information: Background and Issues Related to the USA
PATRIOT Act Reauthorization, by Elizabeth B. Bazan, Charles Doyle, and Edward C. Liu.
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collection of foreign intelligence information via electronic surveillance.87 After the program was
revealed in 2005, dozens of claims were filed challenging its legality. Most of these claims were
filed against private telecommunications companies that had assisted the NSA by providing the
agency with telephone communication records, while others were filed against the NSA itself and
individual government officials.88 Given the sensitive nature of NSA’s surveillance activities, the
federal government intervened in a majority of these cases, invoked the state secrets privilege,
and asked that the cases be dismissed. These early assertions of the privilege saw little success.
For example, in Hepting v. AT&T Corp., the district court denied the government’s motion to
dismiss under the state secrets privilege.89 The court reasoned that the Totten bar was inapplicable
under the facts of the case and that the “very subject matter” of the case was “hardly a secret.”90
The court noted that because of the broad public disclosures by AT&T and the government
relating to the TSP, it could not be concluded “that merely maintaining this action creates a
‘reasonable danger’ of harming national security.”91 The court would not “defer to a blanket
assertion of secrecy.”92
In 2008, however, Congress passed the FISA Amendments Act (FAA)93 which granted the
telecommunications companies retroactive immunity for assistance provided to NSA under the
TSP.94 Accordingly, federal courts have dismissed most of the TSP-related claims filed against
telecommunications companies pursuant to the protections provided in the FAA.
Challenges to the TSP program filed against the NSA or government officials, however, were not
impeded by the immunity granted to telecommunications companies under the FAA. Perhaps the
preeminent existing challenge to the TSP is Al-Haramain Islamic Foundation v. Bush.95 Al-
Haramain involves a claim by a Muslim charity—designated as a terrorist organization by the
United Nations—alleging that the NSA had unlawfully intercepted communications through the
TSP and provided those records to the Office of Foreign Assets Control (OFAC), which
subsequently froze Al-Haramain’s assets in violation of statutory, constitutional and international
law.96 Whereas other plaintiffs had struggled to obtain standing to challenge the TSP,97 OFAC had
inadvertently provided Al-Haramain with a secret document that allegedly proved that the
foundation had been subject to NSA surveillance.98 In response to the complaint, the government
asserted the state secrets privilege both narrowly, with respect to the top secret document, and

87 50 U.S.C. §§ 1801-1808.
88 Compare, Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Ca. 2006), with Al-Haramain Islamic Foundation, Inc.
v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006).
89 439 F. Supp. 2d 974 (N.D. Ca. 2006).
90 Id. at 994.
91 Id.
92 Id. at 995.
93 P.L. 110-261 (110th Cong.) (2008).
94 Under the FAA, a claim may not be maintained against a party for “providing assistance to an element of the
intelligence community, and shall promptly be dismissed” if the Attorney General certifies that the defendant provided
assistance in connection with the TSP and was given written assurances that the program was authorized by the
President and determined to be lawful or that the alleged assistance was not in fact provided. 50 U.S.C. § 1885a.
95 507 F.3d 1190 (9th Cir. 2007).
96 Id. at 1193-1195.
97 See, e.g., ACLU v. NSA, 93 F.3d 644 (6th Cir. 2007)(dismissing plaintiffs challenge to the TSP for lack of standing).
98 Al-Haramain Islamic Foundation v. Bush, 507 F.3d 1190, 1193 (9th Cir. 2007).
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generally, arguing that the case must be dismissed as the “very subject matter” of the proceeding
was a state secret.99
On an interlocutory appeal, the Ninth Circuit rejected the government’s motion to dismiss the
case on the grounds that the subject matter of the claim was a state secret, but accepted the
government’s assertion of the privilege with respect to the top secret document inadvertently
disclosed to Al- Haramain.100 The court held that enough was known about the TSP, including
confirmation of the program by a number of government officials, that “the subject matter of Al-
Haramain’s lawsuit can be discussed … without disturbing the dark waters of privileged
information.”101 Thus dismissal under the state secrets privilege at such an “early stage” was not
warranted.102 However, after in camera review of the top secret document, the court concluded
that “disclosure of information concerning the [secret document] … would undermine the
government’s intelligence capabilities and compromise national security,” therefore the document
itself was protected by the privilege and unavailable to the plaintiffs.103
While the court in Al-Haramain did not dismiss the case under the state secrets privilege, it did
determine that without the top secret document, the plaintiffs could not show the “concrete and
particularized” injury necessary to establish standing.104 In short, without the secret document, the
foundation could not prove that it had actually been a subject of TSP surveillance. The court
therefore dismissed the claim for lack of standing, but left open the important question of whether
certain FISA provisions superseded and preempted the state secrets privilege.
FISA, Preemption, and the TSP
In addition to providing the framework for the authorized collection of foreign intelligence
information via electronic surveillance, FISA also provides a civil remedy for an “aggrieved
person ... who has been subjected to an electronic surveillance or about whom information
obtained by electronic surveillance of such person has been disclosed or used” in violation of
federal law.105 When evaluating the legality of a FISA order, the statute states that the court:
shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that
disclosure or an adversary hearing would harm the national security of the United States,
review in camera and ex parte the application, order, and such other materials relating to the
surveillance as may be necessary to determine whether the surveillance of the aggrieved
person was lawfully authorized and conducted. In making this determination, the court may
disclose to the aggrieved person, under appropriate security procedures and protective orders,
portions of the application, order, or other materials relating to the surveillance only where

99 Id. at 1195.
100 Id. at 1193 (“[W]e agree with the district court that the state secrets privilege does not bar the very subject matter of
this action. After in camera review and consideration of the government’s documentation of its national security claim,
we also agree that the Sealed Document is protected by the state secrets privilege.”).
101 Id. at 1198.
102 Id.
103 Id. at 1204.
104 Id. at 1205.
105 50 U.S.C. § 1810.
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such disclosure is necessary to make an accurate determination of the legality of the
surveillance.106
The Ninth Circuit noted that FISA, “unlike the common law state secrets privilege, provides a
detailed regime to determine whether surveillance ‘was lawfully authorized and conducted.’”107
Were FISA to preempt the state secrets privilege, Al-Haramain would likely be able to proceed
with its claim, as the necessary portions of the secret document would no longer be considered
unavailable. Noting that the preemption question was “central to Al-Haramain’s ability to proceed
with the lawsuit,” the court remanded the case to the district court to determine whether FISA
preempts the state secrets privilege.108
On remand, the Federal District Court for the Northern District of California held that the FISA
procedures, which the court read as requiring judicial examination of the actual underlying
information, superseded the judicially created state secrets privilege as it is described in
Reynolds,109 but only if the plaintiffs could demonstrate that they had standing as an “aggrieved
persons” under FISA.110 Therefore, before FISA’s preemption of the privilege would be triggered,
the plaintiffs would first need to prove, without reference to the privileged secret document, that
they were “aggrieved persons.” In January of 2009, the district court found that the plaintiffs had
successfully met that burden through non-privileged evidence and could thus proceed with
discovery under FISA, which took precedence over the state secrets privilege.111 After a period of
significant resistance by the government in which “defendants denied plaintiffs counsel access to
any classified filings in the litigation,” on March 31, 2010, the court granted summary judgment
to the plaintiffs—based on available non-classified evidence—finding that the federal
government had violated the statutory requirements of FISA and engaged in the unlawful
surveillance of the plaintiffs.112
Government Contractors
The United States commonly intervenes in civil claims brought against government contractors,
especially military contractors, in order to protect state secrets.113 For example, the federal
government intervened and asserted the privilege in a 2008 tort case against Raytheon brought by
the estate of a deceased U.S. Navy lieutenant.
In White v. Raytheon, the wife of Navy combat pilot Nathan White alleged that a malfunction in
Raytheon’s Patriot Air & Missile Defense System was responsible for the death of her husband,
who had been killed when a wayward Patriot missile struck his F/A-18 fighter plane.114 During

106 50 U.S.C. § 1806(f).
107 Al-Haramain, at 1205.
108 Id. at 1206.
109 See, In re NSA Telecomms Records Litig., 564 F. Supp. 2d at 1119.
110 Id. at 1137. See also 50 U.S.C. § 1801(k) (defining “aggrieved persons” under FISA).
111 In re NSA Telecomms. Records Litig., 595 F. Supp. 2d 1077, 1086 (N.D. Cal. 2009).
112 In re NSA Telecomms. Records Litig., 700 F. Supp. 2d 1182 (N.D. Cal. 2010).
113 See, e.g., McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009); Crater Corp. v. Lucent Technologies,
423 F.3d 1260 (Fed. Cir. 2005); DTM Research, L.L.C. v. AT&T Corp., 245 F.3d 327 (4th Cir. 2001). The
government’s intervention in previously discussed extraordinary rendition and electronic surveillance cases could also
be considered government contractor cases.
114 2008 U.S. Dist. LEXIS 102200, (D.Ma. 2008).
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discovery, the United States intervened to assert the privilege through a declaration filed by the
Secretary of the Army. The declaration asserted that any disclosure of “technical information
regarding the design, performance, functional characteristics, and vulnerabilities, of the PATRIOT
Missile system” along with any disclosure of the “rules of engagement authorized for, and
military operational orders applicable” to the missile system would jeopardize national security.115
The Secretary also provided the court with a classified supplemental declaration that further
elaborated on the impact of the disclosure of information specific to the case.116 After in camera
review of the supplemental declaration, the district court judge held that though the plaintiff could
potentially make out a prima facie case absent the privileged information, “I see no practical
means by which Raytheon could be permitted to mount a fair defense without revealing state
secrets.”117 The court thus concluded that it had “no alternative but to order the case
dismissed.”118
The Supreme Court heard oral arguments on January 18, 2011, in a separate government
contractor case involving the invocation of the state secrets privilege by the federal government.
The complex case has the potential to impact the consequences of a valid privilege in cases where
the assertion of the privilege acts to inhibit a party’s ability to defend against an action of the
federal government. The combined cases of General Dynamics v. U.S and Boeing v. U.S involve a
contract entered into in 1988 to design and build a new stealth capable, carrier-based A-12
Avenger.119 By 1990, however, the contractors had fallen behind in the project by missing
required deadlines, which resulted in the Navy terminating the contract in 1991.120 As a result of
the default termination, the Navy demanded that the contractors return $1.35 billion in progress
payments.121 Although the Navy terminated the contract, it is important to note that it was the
contractors who initiated the present litigation with a suit under the Contract Disputes Act.122
Filed with the U.S. Court of Federal Claims, the contractors’ suit argued that a lack of cooperation
and support from the Pentagon had caused the project delays—resulting in a termination of
convenience, rather than a termination for default.123 The contractors asked the court to deny the
government’s demand for the return of the $1.35 billion in progress payments and award the
contractors certain damages. The Navy maintained that the contract was terminated due to default
by the contractors.
One of the contractors’ chief arguments was that that by not providing the companies access to its
existing stealth technology, as it had allegedly promised,124 the Navy had breached its duty to
“disclose critical information to a contractor that is necessary to prevent the contractor from
unknowingly pursuing a ruinous course of action.”125 By withholding its “superior knowledge” of

115 Id. at 4
116 Id. at 17.
117 Id.
118 Id.
119 General Dynamics Corp. v. U.S., (U.S. filed April 23, 2010).
120 See, McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009).
121 McDonnell Douglas Corp. v. U.S., 323 F.3d 1006, 1011 (Fed. Cir. 2003).
122 41 U.S.C. § 609(a).
123 See, McDonnell Douglas Corp. v. U.S., 35 Fed. Cl. 358 (1996). Whether the contract was terminated for “default”
or “convenience” the recovery available to the government, including the return of the progress payments at issue in
this case.
124 Petition for Certiorari, Nos. 091298 and 09-1302 (U.S. filed April 23, 2010) at 2.
125 McDonnell Douglas Corp. v. U.S., 323 F.3d 1006 (Fed Cir. 2003).
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stealth technology, the contractors asserted, it was the Navy that had caused the default. In
support of this “superior knowledge” argument, the contractors sought to obtain evidence relating
to that technology. The federal government responded by invoking the state secrets privilege,
arguing that “the government could not have an implied duty to reveal classified information
pertinent to the A-12 program that would threaten national security.”126 Both the Court of Federal
Claims and the Federal Circuit accepted the claim of privilege and barred evidence of the Navy’s
stealth technology from the litigation.127 Without the privileged evidence, the contractors’
“superior knowledge” defense was rejected. Ultimately, after a series of decisions by the Court of
Federal Claims and the U.S. Court of Appeals for the Federal Circuit, the Federal Circuit
determined that the federal government had properly terminated the contract for default.128 The
government subsequently asked for the return of the $1.35 billion in progress payments plus
appropriate interest.129
The Supreme Court granted certiorari to consider the question of “whether the government can
maintain its claim against a party when it invokes the state secrets privilege to completely deny
that party a defense to a claim.”130 Petitioners argue that under existing state secrets
jurisprudence, once the state secrets privilege barred the contractors from asserting their “superior
knowledge” defense to the termination, the federal government should have been prohibited from
asserting that the termination of the contract was for default. Petitioners rely on the established
principle that “a claim cannot proceed where the state secrets privilege deprives a party of a
potentially valid defense.”131 The petitioners additionally assert that Reynolds’ finding that it
“would be ‘unconscionable’ for the government to ‘prosecute[] an accused’ while at the same
time using the privilege to ‘deprive the accused’ of a defense” should be extended from the
criminal context to this contracting dispute.132 The government counters that the petitioners’ claim
“cannot properly be analogized to a criminal prosecution brought by the United States” as the
case is a civil proceeding, commenced by petitioners, in which the United States is a defendant.133
Thus, the case focuses solely on the consequence of the invocation of the privilege in the context
of this case, rather than an examination of whether the invocation of the privilege was proper.
Employment Cases
The state secrets privilege also arises in employment-related claims against national security
agencies.134 The federal government has generally argued that these cases threaten to disclose
“intelligence-gathering methods or capabilities, and disruption of diplomatic relations with
foreign governments.”135 Sterling v. Tenet, for example, involved a racial discrimination claim
brought against the Director of the CIA.136 Under the facts of the case, Jeffrey Sterling, a CIA

126 McDonnell Douglas Corp. v. U.S., 182 F.3d 1319 (Fed. Cir. 1999).
127 McDonnell Douglas Corp. v. U.S., 323 F.3d 1006, 1020-1024 (Fed. Cir. 2003).
128 See, McDonnell Douglas Corp. v. U.S., 567 F.3d 1340 (Fed. Cir. 2009).
129 Petitioners report that the government is demanding $2.9 billion. Petition for Certiorari, at 11.
130 General Dynamics Corp. v. U.S., 131 S. Ct. 62 (2010).
131 Petition for Certiorari, at 19.
132 Id. at 15 (citing U.S. v. Reynolds, 345 U.S. 1, 12 (1953)).
133 Brief for the United States in Opposition, Nos. 091298 and 09-1302 (U.S. filed Aug. 20, 2010) at 13.
134 See, e.g., Jane Doe v. CIA, 576 F.3d 95 (2nd Cir. 2009); Edmonds v. DOJ, 323 F. Supp. 2d 65 (D.D.C. 2004).
135 Sterling v. Tenet, 416 F.3d 338, 346 (4th Cir. 2005).
136 Id.
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Operations Officer, alleged that he was subject to unlawful discriminatory practices during his
employment at the CIA in violation of Title VII of the Civil Rights Act.137 In response, the CIA
invoked the state secrets privilege and asked the district court to dismiss the case, relying on an
affidavit submitted by CIA Director George Tenet, alleging that litigating the factual issues of the
claim would “compromise CIA sources and methods, threaten the safety of intelligence sources,
and adversely affect foreign relations.”138 The district court granted the CIA’s motion to dismiss,
concluding that the state secrets privilege “barred the evidence that would be necessary to state a
prima facie claim.”139
On appeal, the Fourth Circuit upheld the dismissal. The court asserted that Sterling could not
prove employment discrimination “without exposing at least some classified details of the covert
employment that gives context to his claims.”140 In dismissing the claim, the Fourth Circuit, as it
did in El-Masri, took a broad view of the consequences of a claim in which the “very subject
matter” is itself a state secret, holding that “dismissal follows inevitably when the sum and
substance of the case involves state secrets.”141
Targeted Killing
Another recent invocation of the state secrets privilege has come in the context of the United
States alleged policy on targeted killings. In Al-Aulaqi v. Obama, the father of a U.S.-born
Yemeni cleric and Specially Designated Global Terrorist,142 brought a claim against the federal
government challenging his son’s alleged inclusion on a supposed CIA target kill list. The
plaintiff argued that inclusion on the CIA list meant his son was subject to a “standing order” that
permits the CIA or [Joint Special Operations Command] to kill him without regard to whether
lethal force was lawful under the circumstances in violation of the Fourth and Fifth Amendments
of the U.S. Constitution.143 The federal government responded by arguing that the plaintiff lacked
standing to bring the claim on behalf of his son; that the claim was barred by the political
question doctrine; and in the alternative, that the claim should be dismissed under the state secrets
privilege on the grounds that evidence protected by the privilege “would be necessary to litigate
each of plaintiff’s claims.”144
In support of the government’s claim of privilege, the Director of National Intelligence, the
Director of the Central Intelligence Agency, and the Secretary of Defense submitted declarations
asserting that disclosure of certain evidence connected to the case could cause “exceptionally
grave damage to the national security of the United States.”145 Specifically, the government

137 Id. at 341.
138 Id. at 346.
139 Id. at 342.
140 Id. at 346. “Proof of these allegations would require inquiry into state secrets such as the operational objectives and
long-term missions of different agents, the relative job performance of these agents, details of how such performance is
measured, and the organizational structure of CIA intelligence0gatheriung.” Id. at 347.
141 Id. at 347.
142 727 F. Supp. 2d 1 (D.D.C. 2010). Al-Aulaqi had significant ties to terrorist groups. Id. at 10.
143 Id. at 11.
144 Id. at 53.
145 See, Declaration in Support Formal Claim of State Secrets Privilege, James R. Clapper, Director of National
Intelligence, Al-Aulaqi v. Obama, No. 10-cv-1469 (D.D.C. 2010).
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asserted that the litigation could lead to the disclosure of “information needed to address whether
or not, or under what circumstances, the United States may target a particular foreign terrorist
organization and its senior leadership” and “criteria governing the use of lethal force.”146 In
addition to the public declarations, the government also provided the court with supplemental
confidential declarations for in camera review.
The district court ultimately dismissed the case for lack of standing and non-justiciability under
the political question doctrine without reaching the state secrets privilege claim.147 However, the
court seemed to imply that dismissal would have been warranted under the privilege. In dicta, the
court noted that “given the nature of the state secrets assessment here based on careful judicial
review of classified submissions to which neither plaintiff nor his counsel have access, there is
little that plaintiff can offer with respect to this issue.”148
Conclusion
The federal courts continue to wrestle with the precise contours of the state secrets privilege.
Although the privilege has been invoked in a significant number of cases in a range of areas of
the law, a variety of important questions have yet to be resolved in an authoritative manner.
Unsettled issues include whether the state secrets privilege is more accurately defined as a
common law evidentiary privilege or a constitutional doctrine; the degree of deference to be
accorded to the executive branch during the court’s independent evaluation of an assertion of the
privilege; the circumstances under which a valid privilege must result in outright dismissal as
opposed to allowing the claim to proceed absent the privileged evidence; and, finally, the scope of
Totten and the nature of the relationship between the Reynolds privilege and the Totten bar.

Author Contact Information

Todd Garvey
Edward C. Liu
Legislative Attorney
Legislative Attorney
tgarvey@crs.loc.gov, 7-0174
eliu@crs.loc.gov, 7-9166



146 Al-Aulaqi. at 53.
147 Id. at 54.
148 Id.
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