Text of appeals court ruling on A51 lawsuit
From: campbell@ufomind.com (Glenn Campbell, Las Vegas)
Date: Fri, 6 Mar 1998 09:02:07 -0800
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The full text of the U.S. Appeals Court ruling on the Area 51 hazardous
waste lawsuit can be found at....
http://cgi.ljx.com/cgi-bin/f_cat?/prod/ljextra/data/external/1998/01/9801003.c09
The court rejected the appeal and ruled in favor of the government on
withholding Area 51 information.
"The government may use the state secrets privilege to withhold a broad
range of information.... Once the privilege is properly invoked and
the court is satisfied as to the danger of divulging state secrets,
the privilege is absolute."
Text provided by the National Law Journal
EXCERPT...
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[1] The state secrets privilege is a common law evidentiary
privilege that allows the government to deny discovery of military
secrets. In United States v. Reynolds, 345 U.S. 1 (1953), the Supreme
Court defined the process through which the government can claim the
state secrets privilege:
[T]he principles which control the application of the privilege
emerge quite clearly from the available precedents. The privilege
belongs to the Government and must be asserted by it; it can neither be
claimed nor waived by a private party. It is not to be lightly invoked.
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 the officer. 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.
Id. at 7-8 (footnotes omitted). The asserted claim of privilege
is accorded the "utmost deference" and the court's review of the claim
of privilege is narrow: the court must be satisfied that under the
particular circumstances of the case,"there is a reasonable danger that
compulsion of the evidence will expose military matters which, in the
interest of national security, should not be divulged." Id. at 10; see
also In Re United States, 872 F.2d 472, 475-76 (D.C. Cir. 1989).
[2] The government may use the state secrets privilege to
withhold a broad range of information. Although "whenever possible,
sensitive information must be disentangled from nonsensitive information
to allow for the release of the latter," Ellsberg v. Mitchell, 709 F.2d
51, 57 (D.C. Cir. 1983), courts recognize the inherent limitations in
trying to separate classified and unclassified information:
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 v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978) (Halkin I).
Accordingly, if seemingly innocuous information is part of a classified
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 classified information.
[3] Once the privilege is properly invoked and the court is
satisfied as to the danger of divulging state secrets, the privilege is
absolute: "[w]here there is a strong showing of necessity, the claim of
privilege should not be lightly accepted, but even the most compelling
necessity cannot overcome the claim of privilege if the court is
ultimately satisfied that military secrets are at stake." Id. at 11. The
application of the state secrets privilege can therefore have three
effects. First, by invoking the privilege over particular evidence, the
evidence is completely removed from the case. The plaintiff's case then
goes forward based on evidence not covered by the privilege. Reynolds,
345 U.S. at 11 (noting that despite the government's use of the state
secrets privilege, "it should be possible for respondents to adduce the
essential facts as to causation without resort to material touching upon
military secrets"); Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C. Cir.
1983) (remanding case to determine if plaintiffs can prove prima facie
case without privileged information). If, after further proceedings, the
plaintiff cannot prove the prima facie elements of her claim with
non-privileged evidence, then the court may dismiss her claim as it
would with any plaintiff who cannot prove her case.
[4] Alternatively, "if the privilege deprives the defendant of
information that would otherwise give the defendant a valid defense to
the claim, then the court may grant summary judgment to the defendant."
Bareford v. General Dynamics Corp., 973 F.2d 1138, 1141 (5th Cir. 1992);
see also Molerio v. FBI, 749 F.2d 815, 825 (D.C. Cir. 1984) (granting
summary judgment where state secret privilege precluded the government
from using a valid defense).
[5] Finally, notwithstanding the plaintiff's ability to produce
non-privileged evidence, if the "very subject matter of the action" is a
state secret, then the court should dismiss the plaintiff's action based
solely on the invocation of the state secrets privilege. Reynolds, 345
U.S. at 11 n.26; see also Totten v. United States, 92 U.S. 105, 107
(1875) ("[P]ublic 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, and respecting
which it will not allow the confidence to be violated."); Weston v.
Lockheed Missiles & Space Co., 881 F.2d 814, 816 (9th Cir. 1989)
(recognizing that state secrets privilege alone can be the basis of
dismissal of a suit). While dismissal of an action based on the state
secrets privilege is harsh, "the results are harsh in either direction
and the state secrets doctrine finds the greater public good--ultimately
the less harsh remedy--to be dismissal." Bareford, 973 F.2d at 1144.
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| RELEVANCE OF THIS MESSAGE: Area 51
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| See: http://www.ufomind.com/area51/events/waste_lawsuit/
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Created: Mar 6, 1998
