Originally Posted by
halls120
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:
I facilitated redacted classified information disclosure for a
qui tam suit in the late 1980s in which both attorneys were present
in camera for these discussions. The hearing was delayed for several weeks while the plaintiff's attorney was cleared to the TS/codeword level.
If the judge upholds the government's claims of states secrets during discovery and the government is the prosecutor or the plaintiff, a good defense attorney will file a motion for dismissal. The government will generally drop the charges rather than reveal classified information in court. If the judge refuses the writ of states secrets, and if the government is the prosecutor or the plaintiff, the government will generally drop the case for the same reasons.
If the government is the defendant, the judge will generally rule for the citizen plaintiff or the government will try to settle out of court.
I remember that Judge Brinkman in the Moussaui 20th hijacker case, ruled against the government in a writ of state's secrets petition. It didn't really matter, since Francine the Goolging Lawyer and her employee, Carla Martin, pretty much blew the case on their own.