by Michael Fox
Or at least if you are fortunate enough to represent the CIA in a claim brought by a covert operative. This operative, Jeffrey Sterling (my source: the 4th Circuit Court of Appeals) sued claiming that he had been discriminated against in the way he was treated compared to non-African American covert operatives. After engaging in a little successful forum shopping, the CIA successfully sought to have the claim dismissed based on the state secrets doctrine. On appeal, the 4th Circuit summed up the action of the trial court:
It noted that for Sterling to pursue his claim, he would have to disclose the nature and location of his employment and the employment of those similarly situated. Yet Sterling’s duties and those of his colleagues — and even the names of most of his supervisors and colleagues — were classified, rendering comparative proof of discrimination impossible. After a thorough review, the court concluded that the state secrets doctrine operated to preclude this suit because it barred the evidence that would be necessary to state a prima facie claim. State secrets, the court held, were critical to the resolution of core factual questions in the case, and therefore the doctrine justified dismissal.
Noting that the Supreme Court had recently re-examined the viability and breadth of the doctrine, the Court added its own explanation as to why the doctrine exists, and is particularly applicable in civil cases:
The threat of "graymail" likewise counsels courts to be cautious about risking exposure of sensitive materials. Graymail is a practice where "individual lawsuits [are] brought to induce the CIA [or another government agency] to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations." Tenet, 125 S. Ct. at 1238. Unlike a criminal case, where the government can drop the charges if it fears that litigation presents unacceptable security risks, civil claims put the plaintiff in the driver’s seat. See Reynolds, 345 U.S. at 12. The state secrets privilege provides a necessary safeguard against litigants presenting the government with a Hobson’s choice between settling for inflated sums or jeopardizing national security. Were judges to fail to take care to avoid unnecessary risks of disclosure when the privilege is invoked, the incentives for graymail would correspondingly increase.
Not so cool for plaintiffs, but great for taxpayers. Nice defense to have in your bag of tricks.