Originally Posted by
FliesWay2Much
I disagree, and I have been there, albeit in different kinds of cases in which the government's case hinged on real classified information. During the discovery phase, a decent defense attorney (who could very well be the prosecuting attorney if this was some sort of civil rights case brought by a wrongfully-accused airport visitor) would request any & all documents the government possessed relevant to the case. When the TSA whined "SSI", the attorney would notify the judge that the government claimed state's secrets and would ask the judge to compel the government to turn over the SSI information. The government would either turn over the materials or would file a state secrets writ. The judge, if he were a federal judge, would have access to any SSI or classified information in dispute or which he believed was relevant to his decision on introduction of SSI materials in the trial. Both attorneys could be cleared to the level of the material and discuss the matter in camera.
Most judges sincerely want justice to be done and take a hard line at the government's insistence to keep relevant classified information out of discovery or the actual trial. SSI doesn't even approach being real classified information. Some day, very soon, I hope, a judge will tell the TSA to deposit their precious SSI in an orifice or two.
One technical observation about the above - the discussion of whether the information sought to be excluded from disclosure would be conducted between the judge and the attorney from the government - not the attorney seeking disclosure on behalf of his/her client.
That said, it an open question whether TSA SSI information would qualify for the State Secrets Exemption in a civil trial.
The state secret privilege encompasses matters (not just communications) which, if disclosed, would:
· Harm the nation's defense capabilities.
· Reveal intelligence gathering methods.
· Disrupt diplomatic relations with foreign governments.
The Supreme Court sustained the privilege in United States v. Reynolds, 345 U.S. 1 (1953). Although the rationale of Reynolds expressly drew only upon the common law, part of that opinion, as well as other cases, suggest that the privilege has a constitutional basis founded upon the President's duties in the areas of national security and foreign affairs.
To invoke the privilege successfully, the government need only demonstrate that "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." Reynolds, 345 U.S. at 10.
While I can't find any cases discussing whether SSI would be afforded State Secret-level protection, the government has a fairly easy hurdle to overcome. In Kasza v. Browner, 133 F.3d 1159, C.A.9 (Nev.),1998:
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.