The scope of the state secrets privilege is again a matter of contention, as government attorneys in an ongoing lawsuit told a judge last week that he had construed the privilege too narrowly.

Is the state secrets privilege applicable only to discrete items of evidence whose disclosure can be shown to harm the Nation? Or can the privilege be invoked more broadly based on the “context” in which litigation occurs? The proper parameters of the state secrets privilege have never been defined in statute, and so these questions recur.

In a pending lawsuit concerning the constitutionality of the “no fly” list (Gulet Mohamed v. Eric Holder), the presiding judge has taken a distinctly skeptical view of the government’s use of the state secrets privilege.

Judge Anthony J. Trenga of the Eastern District of Virginia last fall denied a government motion to dismiss the case on state secrets grounds (Secrecy News,10/31/14), and he concluded that the government’s claim of privilege to withhold 28 specified documents was inadequately justified.

But last week, the government renewed its claim that Judge Trenga was “in error,” and that his ruling “may have been based on an improperly narrow construction of the scope of the privilege.”

Specific pieces of documentary evidence are not the only things that can be subject to the state secrets privilege, the government insisted.

“The Attorney General’s assertion of the state secrets privilege in this case is not limited to certain physical documents that Plaintiff seeks to compel through discovery, but rather covers evidence and information that would be needed to litigate the claims presented in this lawsuit in whatever form it appears,” the government argued.

Nor is the privilege simply limited to “information” rather than “documents,” in the government’s view.

“An assessment of the privilege assertion encompasses not just the information set forth in the four corners of a particular document, but also the broader context of the privileged information which that document reflects,” the government asserted in itsJanuary 23 pleading.

By contrast, the government said, Judge Trenga’s order to the contrary “appears to circumscribe the scope of [the government’s] assertion of the state secrets privilege… by focusing on the specific documents” sought by the Plaintiffs in discovery, and then finding those documents insufficiently sensitive to be privileged on state secrets grounds.

“The privilege also protects information that may appear innocuous on its face, but which in a larger context could reveal sensitive classified information,” the governmentargued.

In other words, the government seems to say here, the state secrets privilege has no limiting principle by which it can be circumscribed and objectively constrained.

The State Secrets Protection Act, a bill repeatedly introduced in Congress but never enacted into law, would have made clear that “the state secrets privilege is an evidentiary rule, not a justiciability rule, and can only be asserted with respect to items of evidence that plaintiffs seek in discovery or intend to disclose in litigation.”

It would also have set “a standard of review designed to give appropriate respect to the executive branch’s institutional expertise and constitutional role, without undermining the judge’s duty to make an independent determination on each privilege claim.”

Essentially, according to a 2008 Senate report, “the bill rejects the expansion of the state secrets privilege into any manner of justiciability doctrine, and demands that it be applied as a purely evidentiary privilege.”

But in the absence of legislative action, the asserted scope of the privilege continues to drift.

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Under the terms of a 2009 policy, the Department of Justice committed to provide periodic reports to Congress with respect to all cases in which the state secrets privilege was invoked.

But it has failed to do so, observed Sen. Dianne Feinstein yesterday at the confirmation hearing of Loretta Lynch, the Attorney General-nominee. Only one such report has been transmitted, in 2011, and it does not cover all current state secrets proceedings.

“I believe that the Department plans to submit another report in the near future,” said John Carlin, the head of the Justice Department National Security Division, in a written response to questions prior to his confirmation hearing. But that was in February 2014, and no subsequent report to Congress has been produced.

Nor have any of the 2009 policy’s other provisions been implemented in a way that could be externally verified. No narrowly tailored uses of the privilege have been asserted, as far as anyone knows, and no disputed matters considered subject to the privilege have been forwarded to the Inspector General for review.