Friday, February 17, 2017

The State Secrets Doctrine: The "Unfortunate Burden" Borne on "Behalf of the Entire Country"

As you might have guessed, the state secrets doctrine protects against the disclosure of state secrets -- "military matters which, in the interest of national security, should not be divulged." In Abilt v. Central Intelligence Agency, No. 15-2568 (4th Cir. Feb. 8, 2017), that doctrine was the undoing of covert agent Jacob Abilt -- not his real name -- who alleged that the CIA unlawfully discriminated against him based on his disability, including by canceling his assignment to a warzone.

In concluding that the CIA had properly invoked the state secrets doctrine, the court explained:
There is little doubt that there is a reasonable danger that if information the government seeks to protect from disclosure -- information regarding the specific CIA programs on which Abilt worked; the identities of certain CIA officers; the job titles, duties, and work assignments of Abilt, his coworkers, and his supervisors; the criteria for making work assignments; the sources and methods used by the CIA; the targets of CIA intelligence collection and operations; the training preparations required to send a CIA officer overseas; and the location of CIA covert facilities -- were revealed, that disclosure would threaten the national security of the United States.
Because the merits of Abilt's claim could not be litigated without divulging information protected by the state secrets doctrine, the court dismissed the case. And perhaps feeling guilty about having to send Abilt packing, the court laid it on a little thick in recognizing the great debt owed Abilt by all Americans:
We acknowledge . . . the unfortunate burden, on behalf of the entire country, that our decision places on Abilt. . . .  Abilt suffers dismissal of his claim "not through any fault of his own, but because his personal interest in pursuing his civil claim is subordinated to the collective interest in national security." We however find that "in limited circumstances like these, the fundamental principle of access to court must bow to the fact that a nation without sound intelligence is a nation at risk."
Cases implicating national security issues are rare, so it's an interesting coincidence that the Abilt decision comes on the heals of Hale v. Johnson (discussed in this post), which addressed the national security exception under Title VII of the Civil Rights Act of 1964 and the security clearance exception. Those exceptions differ from the state secrets doctrine because they essentially carve out some kinds of claims from coverage under the EEO statutes. By contrast, the state secrets doctrine does not affect whether there is coverage or a potential violation, only whether it is possible to establish that there is a violation.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.