Litigating state secrets: a comparative study of national security privilege in Canadian, US and English civil cases.

• Author: Kalajdzic, Jasminka

One of the main obstacles in criminal and civil proceedings involving intelligence and executive officials is the objection to disclosure of information and evidence on the basis of national security privilege. Known as the "state secrets privilege" in the United States and "public interest immunity" in England, this evidentiary rule has been invoked successfully in an increasing number of cases in the US and England. Indeed, the privilege has been identified as one of the most serious obstacles to effective human rights remedies. In this essay, I discuss the use of national security privilege in civil litigation in the three jurisdictions, focusing specifically on the role the privilege has played in blocking claims by purported torture survivors and other victims of anti-terrorism activities in the US and England. I also evaluate the potential impact of the privilege on a torture survivor's civil claim, when such a case ultimately goes to trial in Canada. My conclusion, based-on the approach courts have taken to the public interest balancing exercise, is that it will be very difficult for private litigants to obtain disclosure of information over which a claim of privilege has been made.

L'un des principaux obstacles dans les pour-suites civiles et criminelles impliquant des representants des services du renseignement est le refus de communiquer de l'information et des elements de preuve fondus sur le privilege relatif a la securite nationale. Connue sous le nom de > (state secrets privilege) aux Etats-Unis et > en Angleterre, cette regle de preuve a ete invoquee avec succes dans un nombre croissant de causes aux E.-U. comme en Angleterre., En fait, ce privilege est considere comme l'un des plus sericux obstacles a l'efficacite des recours intentes en matiere de droits de la personne. Dans cet essai, je discute du recours au privilege relatif a la securite nationale dans le cadre de poursuites civiles dans trois differents ressorts, en concentrant mon analyse sur le role que ce privilege a joue dans la stagnation des poursuites intentees par des victimes d'actes de torture presumees et d'autres victimes d'activites antiterroristes aux E.-U. et en Angleterre. J evalue les consequences eventuelles du privilege sur la poursuite civile intentee par une victime de torture, lorsque cette cause se retrouve finalement devant un tribunal au Canada. J'en conclus, en me fondant sur l'approche que les tribunaux judiciaires ont adoptee lorsqu'il s'agit de concilier de telles revendications avec l'interet public, que des plaideurs prives auraient beaucoup de difficulte & obtenir que des renseignements vises par la revendication d'un tel privilege leur soient communiques.

Table of Contents I. INTRODUCTION II. US STATE SECRETS PRIVILEGE A. Nature and Origin B. El-Masri v. Tenet C. Legislating State Secrets III. US STATE SECRETS PRIVILEGE A. Nature and Origin B. Binyam Mohamed v. Secretary of State for Foreign and Commonwealth Affairs IV. CANADA AND SECTION 38 A. Nature and Origin B. Anti-Terrorism Act Changes C. Balancing "Public Interests" in Civil Actions V. PROPOSALS FOR REFORM VI. CONCLUSION I. INTRODUCTION

In February 2009, the United Nations' Special Rapporteur on Human Rights released a scathing report on the role of intelligence agencies in the fight against terrorism. (1) Unlawful conduct by these agencies has led to the violation of the prohibition against torture, as well as to violations of other human rights and civil liberties. (2) The Special Rapporteur noted that "the lack of oversight and political and legal accountability has facilitated illegal activities by intelligence agencies," and such unlawful conduct "may have been condoned or even secretly directed by government officials." (3) He reaffirmed, therefore, as an immediate imperative for all states involved in anti-terrorism activities, the necessity of independent investigation of human rights violations, and accountability of intelligence agencies and government officials for their actions. (4)

One of the main obstacles to such independent investigation and accountability of intelligence and executive actors is the objection to disclosure of information and evidence on the basis of national security privilege. (5) Known as the "state secrets privilege" in the United States and "public interest immunity" in England, this evidentiary rule has been invoked successfully in an increasing number of cases in the US and England. (6) Indeed, the privilege has been identified as one of the most serious obstacles to effective human rights remedies. The Special Rapporteur expressed grave concern about "the increasing use of State secrecy provisions and public interest immunities for instance by . . . the United Kingdom or the United States to conceal illegal acts from oversight bodies or judicial authorities, or to protect itself from criticism, embarrassment and--most importantly--liability." (7)

In light of the potentially dire consequences for the individual defendants, the prevalence of claims of national security privilege is highly problematic in criminal prosecutions and immigration proceedings, and has been discussed at length by many commentators in Canada and abroad. (8) Its use in the civil justice system, however, has not been the subject of legal scholarship. And yet, given the absence of other mechanisms of redress, it is to the civil courts that torture survivors and others may have to turn for compensation, exoneration and accountability. (9) No civil action brought by a wrongfully accused person in the national security context has gone to trial in Canada, although at least four prominent actions have been commenced against the Crown by Canadians who allege that the government was complicit in their detention and torture by other states. (10)

In this essay, I will discuss the use of national security privilege in civil litigation in both the United States and England, focusing specifically on the role the privilege has played in blocking claims by torture survivors and other victims of anti-terrorism activities. In response to the perceived injustices of the use of national security privilege, US lawmakers have proposed legislation that would give courts greater control over the operation of the privilege. Since courts in both Canada and the UK already possess many of the powers of review that the American legislation envisions for its own courts, the potential utility of the draft statute will be assessed based on the Canadian and English experiences with the privilege. I also evaluate the potential impact of the privilege on a torture survivor's civil claim, when such a case ultimately goes to trial in Canada. My conclusion, based on the approach courts in each jurisdiction have taken to the public interest balancing exercise, is that it will be very difficult for private litigants to get disclosure of information over which the government has claimed national security privilege in any of the three jurisdictions, and as a result, they will face serious obstacles in the pursuit of their civil claims. Brief proposals for reform to avoid such an injustice will be offered at the end of the article.

2. US STATE SECRETS PRIVILEGE

   1. Nature and Origin

      In the United States, the state secrets privilege is a common law evidentiary privilege whose purpose is to block the disclosure in litigation of information that will damage national security. While it has an English pedigree, the privilege is commonly said to derive from the President's constitutional authority over military and diplomatic affairs, and must be formally asserted by the head of the executive branch agency with control over the state secrets in question. (11)

      The first full-scale treatment of the privilege occurred in 1953, with the US Supreme Court's seminal decision in Reynolds. (12) This case involved a tort claim by the widows of civilian observers killed on a military aircraft when it crashed while testing secret electronic equipment. In response to the plaintiffs' request for disclosure of the confidential accident report and of statements made by the surviving crew members during the investigation, the government brought a motion claiming the report was protected by state secret privilege, on the basis that the aircraft and crew were on a highly secret military mission. (13) The District Court and Federal Appeals Court both rejected the privilege claim and ordered that the documents and witnesses be produced. Importantly, when the government refused, the District Court entered final judgment for the plaintiffs on the grounds that the refusal to produce the documents established the Air Force's negligence. (14)

      A majority of the Supreme Court reversed and found that the privilege claim was valid. Although the Court did not agree that the executive should have the sole and final word on the question of non-disclosure, it did not propose a robust balancing exercise either. The majority stated:

      Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, 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. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers. (15) Thus a court faced with a claim of privilege, "under circumstances indicating a reasonable possibility that military secrets were involved," should prohibit disclosure of the document, and refuse to inspect the document...