U.S., In re

• Decision Date: 14 April 1989
• Docket Number: No. 87-5383,87-5383
• Citation: 872 F.2d 472
• Parties: , 57 USLW 2609, 27 Fed. R. Evid. Serv. 1003 In re UNITED STATES of America, Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 472

872 F.2d 472

277 U.S.App.D.C. 37, 57 USLW 2609, 27

Fed. R. Evid. Serv. 1003

In re UNITED STATES of America, Petitioner.

No. 87-5383.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 27, 1988.

Decided April 14, 1989.

As Amended April 14, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-02034).

Freddi Lipstein, Atty., Dept. of Justice, with whom John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Washington, D.C., were on the petition for a writ of mandamus. Larry L. Gregg and Barbara Herwig, Atty., Dept. of Justice, Washington, D.C., also entered appearances for petitioner.

Stuart A.C. Drake, with whom Alfred Winchell Whittaker, Timothy S. Hardy, Ronald A. Stern, Geoffrey F. Aronow, Arthur Spitzer, and Elizabeth Symonds, Washington, D.C., were on the memorandum in opposition to petition for writ of mandamus.

Before MIKVA and D.H. GINSBURG, Circuit Judges, and MAX ROSENN, ^* U.S. Senior Circuit Judge for the Third Circuit.

Opinion for the court filed by Senior Circuit Judge ROSENN.

Opinion concurring in part and dissenting in part filed by Circuit Judge D.H. GINSBURG.

MAX ROSENN, Circuit Judge:

This appeal presents the classic conflict between the public interest in preserving the secrecy of "classified" government information and the private interest of the litigant. The primary issue is whether the United States Attorney General's formal invocation of the state secrets privilege before even filing an answer and responding to discovery requires dismissal of plaintiff's complaint.

Plaintiff Lillie Albertson brought this action in July 1984 against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 (1982) (FTCA), claiming injuries to her and her deceased husband from intelligence activities conducted by the Federal Bureau of Investigation from 1950 to 1964. Rather than answer the complaint, the Government moved to dismiss it on a number of grounds not material to the issue now before us. The district court denied the motion.

The Government then negotiated an extension of time to file an answer and entered into a stipulation scheduling discovery. The Government, however, neither answered nor proceeded with discovery, but instead filed a second motion to dismiss, this time asserting that the state secrets doctrine precluded discovery and required dismissal of the suit. The district court denied this motion also, and directed the Government to answer the complaint. ¹

The Government now seeks mandamus from this court, asking us to recognize the applicability of the state secrets privilege and to direct the district court to dismiss the suit. We deny the petition for mandamus.

I.

The complaint alleges that the Government, through its COINTELPRO domestic surveillance and political action programs, committed torts against plaintiff and her deceased husband actionable under New York law. ² Among her claims, plaintiff includes intentional infliction of emotional distress, invasion of privacy, prima facie tort, and independent tort. See Complaint at paragraphs 19-36.

Plaintiff's husband, William Albertson, was a United States citizen until his death in 1972. He was also a member of the Communist Party of the United States of America until 1964. Plaintiff alleges that from 1950 to 1964 she and her husband were the targets of an FBI investigation that culminated in a scheme designed to embarrass them in the eyes of the Communist Party and to discredit the Party itself. In 1964, she claims, the FBI, in a "snitch jacket" operation, planted a fictitious report in a car used by Albertson and his Party colleagues that made Albertson appear to be an FBI or police informant. When Party colleagues discovered the document, they expelled Albertson from the Party. ³ Plaintiff claims that as a result of the FBI operation, William Albertson lost not only his Party affiliation but also his health, his job at a Party bookshop, and most of his friends.

In seeking dismissal of the complaint, the Government argued in the district court that matters at the core of plaintiff's claims and the Government's defenses to those claims constitute secrets of state that would be jeopardized if the case were to continue. The Government claimed an absolute privilege under the state secrets doctrine. In support of the Attorney General's formal invocation of the state secrets privilege, the Government submitted for the district court's in camera review a twenty-eight page, classified affidavit by James H. Geer, the assistant director of the FBI's Intelligence Division. The district court denied the motion to dismiss.

After unsuccessfully appealing the district court's decision not to dismiss, ⁴ the Government petitioned this court for mandamus directing the district court to vacate its order and dismiss the complaint. Another panel of this court ordered the district court to review the confidential Geer affidavit and to explain its ruling denying the motion to dismiss. The district court did so in a memorandum opinion. We must now decide whether mandamus is appropriate in this case.

II.

The state secrets privilege is a common law evidentiary rule that protects information from discovery when disclosure would be inimical to the national security. Although the exact origins of the privilege are not certain, see Note, The Military and State Secrets Privilege: Protection for the National Security or Immunity for the Executive?, 91 Yale L.J. 570, 571 (1982), the privilege in this country has its initial roots in Aaron Burr's trial for treason, United States v. Burr, 25 F.Cas. 30 (C.C.D.Va.1807), and has its modern roots in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). In Reynolds plaintiffs brought a civil action against the United States for the wrongful death of their civilian husbands in the crash of a military airplane, and requested discovery of the Government's accident report and related documents. The Government initially claimed that Air Force Regulations barred disclosure of the information but then further objected on the basis of a formal "Claim of Privilege" against revealing military secrets. The district court ordered the Government to produce the documents so that the court might determine whether they contained privileged material. The Government refused, and so the court ordered, under Fed.R.Civ.P. 37, that the fact of negligence would be taken as established and entered final judgment for the plaintiffs. The court of appeals affirmed. 192 F.2d 987 (3d Cir.1951).

The United States Supreme Court reversed, holding that the documents were privileged under the state secrets doctrine. 345 U.S. at 10, 73 S.Ct. at 533. In attempting to define the parameters of the states secrets privilege, the Court laid down principles that remain substantially intact this day. The privilege belongs to the government, and may be asserted by the government even when it is not a party to the case. See, e.g., Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236 (4th Cir.1985); Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268 (4th Cir.1980) (in banc). To successfully invoke the privilege, the head of the department having control over the matter must make a formal claim of privilege after actual personal consideration of the matter. Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 531-32.

Mere compliance with the formal requirements, however, is not enough. "To some degree at least, the validity of the government's assertion must be judicially assessed." Molerio v. Federal Bureau of Investigation, 749 F.2d 815, 822 (D.C.Cir.1984). The court itself must determine whether the circumstances are appropriate for allowing the claim; such a judicial enterprise requires delicacy, so as not to "forc[e] a disclosure of the very thing the privilege is designed to protect." Reynolds, 345 U.S. at 8, 73 S.Ct. at 532 (footnote omitted). Yet a court must not merely unthinkingly ratify the executive's assertion of absolute privilege, lest it inappropriately abandon its important judicial role. "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers." Id. at 9-10, 73 S.Ct. at 532-33. To properly fulfill its obligations, while according the " 'utmost deference' " to the executive's expertise in assessing privilege upon grounds of military or diplomatic security, see Halkin v. Helms, 598 F.2d 1, 9 (D.C.Cir.1978) (Halkin I ) (quoting United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974)), a court must uphold the privilege if the government shows that "the information poses a reasonable danger to secrets of state." Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982) (Halkin II ).

Identifying the harm that disclosure would do has become an increasingly complicated task as intelligence gathering has become more highly sophisticated. As this court has recognized:

It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate.

Halkin I, 598 F.2d at 8. This court applies an appropriately narrow standard of review, and will uphold a claim of privilege for information that standing alone may seem harmless, but that together with other information poses a reasonable danger of divulging too much to a "sophisticated intelligence analyst." Id. at 10 (sustaining claim of state secrets privilege with respect to mere fact of interception of plaintiffs' foreign communications by the National Security Agency).

Moreover, in assessing the privilege in these modern times, this court does not limit itself to a narrow conception of...