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

Mon, Nov 3rd 2014 8:53am — Mike Masnick

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.

Gulet 103014 (PDF)Gulet 103014 (Text)

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Filed Under: dhs, doj, evidence, gulet mohamed, no fly list, state secrets

26 Comments

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Anonymous Coward, 3 Nov 2014 @ 9:12am

Hey, why not? Didn't the 'State Secrets' Magic Wand work like a charm in Guantanamo?
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Anonymous Coward, 3 Nov 2014 @ 9:14am

Don't expect this decision to stick.
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Anonymous Coward, 3 Nov 2014 @ 9:16am

Re:
Why? is the constitution dead?
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Anonymous Coward, 3 Nov 2014 @ 9:17am

No because another court will overturn that decision.
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That Anonymous Coward (profile), 3 Nov 2014 @ 9:24am

DoJ has been spending to much time in the secret courts, where they can use imaginary secret laws to get what they want by merely saying 'because we said so'.
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Anonymous Coward, 3 Nov 2014 @ 9:25am

Fourth Circuit [was Re: ]
... 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.
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AricTheRed (profile), 3 Nov 2014 @ 9:25am

I'm Inspired!
I'm going to teach my dog a new trick.

I'll say "State Secrets"

And he'll just lay down and roll over. It will be awesome!
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Anonymous Coward, 3 Nov 2014 @ 9:33am

Re: Re:
No, the Constitution isn't dead - It's just pining for the fjords.
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Anonymous Coward, 3 Nov 2014 @ 9:33am

Re:
And it seems to be working for them quite nicely. Why change now?
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Anonymous Coward, 3 Nov 2014 @ 9:35am

Re: Fourth Circuit [was Re: ]
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...]
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New Mexico Mark, 3 Nov 2014 @ 9:46am

Re: Re: Re:
Constitution:

"I'm not dead yet!"
"I'm feeling much better."
"I think I'll go for a walk."
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Digitari, 3 Nov 2014 @ 10:00am

Re: Re: Re: Re:
Stay Home Constitution, you may get Ebola......

Enjoy

Barack

Obama's

Legacy,

America!
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Anonymous Coward, 3 Nov 2014 @ 10:37am

'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!!
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Anon, 3 Nov 2014 @ 11:16am

What would they rule?
Assuming the case went up to appeal court (4th)

What could they rule? Can they simply toos the case, or would they say "government does not have to produce evidence? DO they have to give a reason?
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Anonymous Coward, 3 Nov 2014 @ 11:24am

Opinions
DO they have to give a reason?

No.

Otoh, if the Fourth Circuit just tossed the case, in a one-line per curiam order... well, I wouldn't be surprised to see the next court order read “petition for certorari granted”.
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art guerrilla (profile), 3 Nov 2014 @ 12:12pm

Re:
here's the thing: do The They (tm) 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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Anonymous Coward, 3 Nov 2014 @ 12:51pm

I wonder how long it will take...
for some guy high up on the ladder to proclaim that judge and others who rule against them, to be in league with terrorists and pedophiles.
Those are their two favorite words and they use them often about people with different opinions than their own.
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That One Guy (profile), 3 Nov 2014 @ 12:52pm

Re: I'm Inspired!
That's unfair to your dog, more often than not they have much more spine than judges, so to expect him/her to act the same is an unfair comparison.
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Rekrul, 3 Nov 2014 @ 1:39pm

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:

Coming soon: A bill that defines state secrets as sovereign immunity.
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harbingerofdoom (profile), 3 Nov 2014 @ 3:19pm

Re: Re: Re: Re:
and thats the last they ever saw of Damone....
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Anonymous Coward, 3 Nov 2014 @ 4:32pm

Re: Re: Re: Re:
"I'm going out for a walk, and I may be some time."
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Bergman (profile), 3 Nov 2014 @ 7:56pm

One thing I've always wondered...

I can understand why the doctrine of sovereign immunity would apply if, for example, someone in Canada wanted to sue the US government.

But the US government is the elected and appointed representatives of the collective citizenry of the United States. How can it have sovereignty over its own employers?
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David, 3 Nov 2014 @ 10:32pm

Re: Re:
The Constitution may not be dead, but it certainly is not playing in the same league as the government.
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Anonymous Coward, 4 Nov 2014 @ 2:23am

Re:
Here, here.
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Pragmatic, 4 Nov 2014 @ 6:01am

Re: Re: Re: Re: 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.
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Anonymous Coward, 9 Nov 2014 @ 3:38pm

Re: Re: Re: Re: 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.
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