Class #25: Obstacles To Remedies I

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Class #25: Obstacles to Remedies IProfessor Emily BermanTuesday, November 18, 2014

Tuesday, November 18, 2014 FinishEspionage Act discussion Obstaclesto remedies Pleading Standards: Ashcroft v. Iqbal State Secrets Privilege: Mohammed v.Jeppeson Dataplan et al.2

Facts: Franklin (DOD employee) gave classifiedinformation to Rosen and Weissman. R & W gave it to members of the media andforeign government officials. R &W were the first non-governmentemployees ever to be prosecuted under theEspionage Act of 1917. Questions: Whether the statute isunconstitutionally vague, overbroad, orviolates the defendants’ free speech rights.3

18U.S.C. section 793(e): Whoever having unauthorized possessionof . . . [any national defense informationthat] the possessor has reason to believecould be used to the injury of the UnitedStates or to the advantage of any foreignnation, willfully communicates . . . [thatinformation] to any person not entitledto receive it. . . .”4

Court: The statute does come into tension with1A principles, but it is notunconstitutional because it issufficiently focused. The limits come from “judicial gloss”and the required mens rea. Mens rea: Section 793(d) & (e) permitconviction of those who “willfully”commit the prohibited acts and do so withbad faith (1266) .5

(1271):“Punishing defendants engaged inpublic debate for unwittingly harming alegitimate government interest isinconsistent with the Supreme Court’s FirstAmendment jurisprudence. Limiting [NDI]to that information which the defendantknows, if disclosed, is potentially harmfulto the United States, by virtue of the statute’swillfulness requirement, avoids this problem. . . [T]he defendant must know thatdisclosure . . . is potentially harmful.”6

18U.S.C. section 793(e): Whoever having unauthorized possessionof . . . [any national defense informationthat] the possessor has reason to believecould be used to the injury of the UnitedStates or to the advantage of any foreignnation, willfully communicates . . . [thatinformation] to any person not entitled toreceive it. . . .”7

18U.S.C. § 798: Whoever knowingly and willfully . . .publishes . . . any classified information. . . concerning the communicationintelligence activities of the UnitedStates. . . .”8

The Role of Remedies1. Make individual victims whole.2. Accountability for wrongdoing bygovernment officials.3. Deterrence of future wrongdoing bygovernment officials.9

Facts: Iqbal was detained & mistreated under theDOJ’s “hold until cleared” policy. Claims: Vs. custodians: 5A claim regarding histreatment. Vs. Attorney General & FBI Director: 14Aclaim that he was singled out for ADMAXSHU detention because of his race, religion,and/or national origin pursuant to officialDOJ policy.10

Holding: 5A rights against physical mistreatment,excessive force, and ethnic/religiousdiscrimination are not conditional, andthey are clearly established. Factual questions with respect to whetherhis detention was punitive. Singling a detainee out for mistreatmentsolely on account of his religion or nationalorigin violates EPC when combined withhis claim of punitive measures.11

Claims: Limited to the claims against AGAshcroft and FBI Director Mueller. Holding: Iqbal’s complaint fails to “plausiblyshow[] that petitioners purposefullyadopted a policy of classifying postSeptember 11 detainees as ‘of highinterest’ because of the race, religion, ornational origin.” (749)12

“It should come as no surprise that alegitimate policy directing lawenforcement to arrest and detainindividuals because of their suspectedlink to the attacks would produce adisparate, incidental impact on ArabMuslims even though the purpose of thepolicy was to target neither Arabs norMuslims.” (749)Do you agree?13

Reno v. AAADC (1999): “[A]n alienunlawfully in this country has noconstitutional right to assert selectiveenforcement as a defense against hisdeportation.” Turkmen v. Ashcroft, 2d Cir. (2009): Pretextual motives for immigrationdetention does not offend the 4A. Selective enforcement of immigrationlaws does not offend the EPC. 14

Background: Negligence action by families ofindividuals killed in the crash of amilitary plane testing new radarequipment. Plaintiffs sought access to the Air Force’saccident report & statements ofsurviving crew members. The Court, without looking at thedocuments, acceded to the Air Force’sassertion of privilege.15

Court: Must be a formal assertion by the headof a department. Court must be satisfied, “from all thecircumstances of the case, that there is areasonable danger that compulsion ofthe evidence will expose militarymatters which, in the interest of nationalsecurity, should not be divulged.” If the standard for privilege is met, theprivilege is absolute.16

Facts: A spy was paid 200/week by PresidentLincoln to “ascertain the number oftroops stationed at different points inthe insurrectionary States, procureplans of forts and fortifications, andgain such other information as mightbe beneficial.” After the spy’s death, his estate soughtto enforce the contract for back pay.17

“Both employer and agent must haveunderstood that the lips of the other wereto be for ever sealed respecting therelation of either to the matter.”This condition is part of the nature of “allsecret employments of the government intime of war, or upon matters affecting ourforeign relations, where a disclosure of theservice might compromise or embarrassour government.”18

Facts: Mohammed and others claimed that theywere rendered by the CIA to thirdcountries where they were subjected totorture. Jeppesen allegedly provided flightplanning and logistical support and had“actual or constructive knowledge of theobjectives of the rendition program.” Mohammed and his co- plaintiffs suedJeppesen under the Alien Tort Statute.19

Instances when Reynolds & TottenConverge: If the plaintiff needs privileged evidenceto make a PF case. If the defendant needs privilegedevidence to make a defense. Privilege and non-privileged evidencethat are necessary to the claims ordefenses are inseparable from oneanother and so create an “unacceptablerisk of disclosing state secrets.”20

El-Masri v. United States, 4th Cir. (2007): Rendered from Macedonia to Afghanistan, wherehe was allegedly tortured.Dismissed on state secrets grounds.Arar v. Ashcroft, 2d Cir. (2009): Canadian detained & questioned by FBI at JFK.Sent to Syria via Jordan, where he was allegedlyheld for a year, interrogated, beaten, etc.Bivens action dismissed due to “special factors”counseling against recognizing a cause of action.Arar awarded 10M Canadian after the Canadiangovernment conceded it was a case of mistakenidentity.21

En banc court: “Denial of a judicial forum based on thestate secrets doctrine poses concerns atboth individual and structural levels. For[the plaintiffs], our decision forecloses atleast one set of judicial remedies, anddeprives them of the opportunity to provetheir alleged mistreatment and obtaindamages. At a structural level, terminatingthe case eliminates . . . one importantcheck on alleged abuse by governmentofficials.”22

El-Masri v. United States, 4th Cir. (2007): Rendered from Macedonia to Afghanistan, where he was allegedly tortured. Dismissed on state secrets grounds. Arar v. Ashcroft, 2d Cir. (2009): Canadian detained & questioned by FBI at JFK. Sent to Syria via Jordan, where he was allegedly held for a year, interrogated, beaten, etc. Bivens action dismissed due to “special factors”

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