Judge Says Government Can’t Use State Secrets to Toss No Fly List Challenge

Under both Presidents Barack Obama and George W. Bush, the government has on occasion invoked the so-called state secrets privilege in order to toss out lawsuits. Merely allowing certain cases into the courtroom, the argument goes, would necessarily reveal secret information and endanger national security.

Yesterday, that argument failed, when a federal judge rejected the government’s attempts to dismiss a case brought by a man who is challenging his inclusion on the no-fly list. Gulet Mohamed was nineteen in 2011 when he was barred from coming home to his family in Virginia from Kuwait. A naturalized U.S. citizen from Somalia, Mohamed was allegedly detained at the behest of the U.S. and beaten by Kuwaiti officials before finally being allowed back into the country (a picture taken just after his arrival is shown above).

In allowing Mohamed’s case to proceed, Judge Anthony Trenga, in the Eastern District of Virginia, said that the state secrets privilege was “not a doctrine of sovereign immunity.”

In arguments to the court this May, Justice Department lawyers said that the case was impossible to litigate “because properly protected national security information would go to the core of the claims and defenses.”

“When an individual asserts a claim that his substantive rights have been violated by an alleged No Fly List placement, the reasons for any such No Fly List placement are central to any consideration of such a claim,” the Justice Department memo read. In the kind of circular argument typical of cases involving classified material, it continues: “the basis for any individual’s placement on the No Fly List derives from sensitive and classified national security information.”

Trenga demanded that he be allowed to review the secret documents related to the watchlisting in August, and wrote yesterday that he believed the case could still go forward without them.

Mohamed’s attorney, Gadeir Abbas, said that the judge had “returned the state secrets privilege to an appropriate role, as a narrow way to exclude particular pieces of evidence, rather than as a way to shield the government from judicial scrutiny.”

The CIA famously used the state secrets privilege in 2006 to dismiss the case of German citizen Khaled El-Masri, an innocent man who was mistakenly turned over to the CIA, imprisoned, and tortured.

In his early days on the campaign trail and in office, Obama suggested that Bush had overreached in asserting the privilege, and in 2009, Attorney General Eric Holder tightened the rules for its use. But Obama carried on his predecessor’s position in a number of cases on surveillance and rendition, and has since asserted it in a few more. (Steven Aftergood of the Federation of American Scientists’ Secrecy News first reported yesterday’s decision. FAS has collected information on state secrets cases here.)

Last month, in a completely unprecedented move, the Justice Department intervened to assert state secrets in a private defamation lawsuit between a Greek businessman and an advocacy group called United Against Nuclear Iran. The Justice Department’s attempt to have the case quashed has stumped observers, because it is unclear what the government’s secret interest in the case could be.

Photo: Jacquelyn Martin/AP