Redoing the Human Rights First Scorecard III (State Secrets)

Taking up the thread of Ben's project (recasting the HRF scorecard here, here, and here), I'd like to offer an alternative take on the administration's handling of the state secrets privilege. Under the heading "Abuse of the State Secrets Privilege," HRF hits the administration with a big fat F on the ground that it

has repeatedly asserted the "state secrets privilege" [gotta love the scare quotes] to obtain dismissal of legal claims by victims of U.S.-sponsored torture.  Although federal courts have procedures they can use to protect the disclosure of classified information, the administration has instead successfully convinced courts [Svengali alert!] to dismiss these cases in their entirety on state secrets grounds.  This has made it impossible for victims of U.S.-sponsored torture to obtain any form of accountability and redress.

From HRF's point of view, of course, the grade is fitting; HRF in general is critical of the state secrets privilege, but above all HRF objects to using the privilige to block litigation alleging the violation of rights.  Unless the Obama Administration had withdrawn the assertion of the privilege in various pending cases, or refused to defend the argument on appeal, a grade of F from HRF was inevitable.  Indeed, if HRF had included a category for "Justiciability Doctrines" (or "Abuse of Justiciability Doctrines"), I'm sure they would likewise have slammed the administration for (successfully) invoking standing and political question arguments in the al-Awlaki litigation. In both contexts, the issues are (i) whether it is improper for the administration to make use of existing legal doctrines (let's be clear here - judges for good or ill have used the state secrets privilege to dismiss suits alleging that national security-related activity violated individual rights since long before both the Bush and Obama administrations) to have lawsuits dismissed, and (ii) whether it follows in such circustances that the executive branch is unchecked and unaccountable.  I think it is tough to disentangle issue (i) from one's views on the underlying merits in particular cases, but as a general proposition I do not think it is improper for the government to seek dismissal on justiciability or privilege grounds when the existing law reasonably supports such arguments.  As to issue (ii), though litigation obviously plays a very important role as a check on the executive branch, the absence of judicial oversight has never been tantamount to an unchecked executive.  Legislative oversight, advocacy campaigns, media reports, diplomatic pressures, electoral pressures, internal investiations by statutorily-independent inspectors general, internal legal review from general counsel office lawyers, and a host of other elements of internal executive branch cross-checking all play a significant role. Far from flunking the Administration on this point, then, I would give it a B+ on the strength of its adoption of a substantial intra- and inter-agency process for vetting assertions of the privilege.  This system that should go a long way toward preventing invocation of the privilege in circumstances in which the doctrinal grounds for its invocation are not actually met.   Even with such concerns addressed, of course, this still leaves the question of whether anything ought to be done to address the fact that under current doctrine, the privilege applies equally in cases that that merely involve contract disputes among defense contractors and cases that allege serious unlawful conduct by the government itself.  That, I think, is the problem that really riles people (including HRF), and understandably so.  The new procedures try to ameliorate the concerns that arise in cases alleging illegal government activity by ensuring various forms of oversight other than litigation (notification to relevant inspectors general and congressional committees) when the privilege is used in such cases.  It's hard to say from the outside what impact, if any, this has had, which is why I'm going with a B+ rather than an A here.