UNITED STATES OF AMERICA, PETITIONER V. LILLIE ALBERTSON No. 89-52 In the Supreme Court of the United States October Term, 1989 The Acting Solicitor General, /1/ on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-22a), with the exception of classified portions of Judge Ginsburg's opinion, is reported at 872 F.2d 472. The district court's order of March 16, 1987 (App., infra, 29a) and its opinion of March 22, 1988 (App., infra, 23a-28a) are unreported. JURISDICTION The judgment of the court of appeals was entered on April 14, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, in rejecting the government's argument that its properly asserted claim of state secrets privilege precludes both discovery in and, indeed, any continuation of this Federal Tort Claims Act case, the court of appeals erroneously second-guessed the Attorney General's assessment of the current national security interests in maintaining the state secrets and misjudged the risks and dangers of exposure of those secrets. STATEMENT In this Federal Tort Claims Act (FTCA) suit concerning events between 1950 and 1964, the United States moved to dismiss on the basis of a claim of state secrets privilege. After the district court denied the motion, the court of appeals denied the government's petition for a writ of mandamus. The court of appeals, stating that it was unpersuaded that litigation about events prior to 1964 sufficiently threatened disclosure of state secrets of current national security importance, held that discovery need not be precluded and the case need not be dismissed. 1. In 1984, following exhaustion of administrative claim procedures, respondent Lillie Albertson, as executrix of the estate of her late husband, William Albertson, and on her own behalf, commenced an action under the FTCA, 28 U.S.C. 1346(b), 2671-2680, seeking damages for injuries allegedly caused by activities of the Federal Bureau of Investigation from the early 1950s to 1964. App., infra, 41a-53a. Respondent alleged that during tht period she and her husband were members of the Communist Party of the United States of America (CPUSA) and that her husband was an employee of the CPUSA for many years, becoming President of the CPUSA-owned and -operated Jefferson Bookshop by 1962. /2/ The complaint further alleges that, because of the Albertsons' political beliefs and associations, the FBI conducted various operations designed to disrupt their lives and to interfere with their personal and political associations. Id. at 41a-42a, 45a. In particular, the complaint alleges that the FBI engaged in various forms of surveillance and harassment of the Albertsons -- including electronic eavesdropping, obtaining private financial information, and opening their mail -- and, in June 1964, planted a bogus informant's report, using a forgery of William Albertson's handwriting, to make it appear to his CPUSA associates that he was an FBI informant. App., infra, 42a-44a. When the document was discovered, the complaint alleges, William Albertson lost his job at the Jefferson Bookshop, the Albertsons were expelled from the CPUSA, they were ostracized by their associates and friends, and they suffered economic, psychological, and other damages. Id. at 44a-49a. According to the complaint, William Albertson spent most of his time until his death in 1972 seeking, without success, to demonstrate that the informant's report was not authentic. Id. at 47a. The complaint alleges causes of action under the law of New York, where the Albertsons lived during the events at issue. Specifically, the complaint alleges intentional infliction of emotional distress, tortious invasion of privacy, a "prima facie tort" (malicious causing of injury without justification or excuse), an "independent tort" (intentional or reasonably foreseeable tortious causing of injury), and loss of consortium. App., infra, 49a-52a. Respondent asks for $1,000,000 in damages, including $28,345 for loss of income, out-of-pocket expenses, and other special damages. Id. at 52a. 2. The government initially moved on three grounds to dismiss the action for failure to state a claim and for lack of jurisdiction: that the suit was barred by the statute of limitations, that the complaint failed to state a cause of action under New York law, and that injuries incident to national security activities of the federal government were outside the scope of the FTCA's waiver of sovereign immunity from suit. The district court denied the motion on December 10, 1985. The government thereafter undertook an extensive document review in order to respond to the complaint. On February 18, 1986, the government filed a motion to dismiss based on a formal public claim of state secrets privilege made that day by the Attorney General. App., infra, 36a-40a. The Attorney General stated (id. at 36a-37a) that he was asserting the privilege "to protect sensitive foreign intelligence and foreign counterintelligence sources and methods, to preserve current foreign security objectives and capabilities and to avoid disrupting the diplomatic relations of the United States." He added: "I believe that the national security would be damaged in these respects should this litigation continue." Id. at 37a. More particularly, the claim of privilege covered three categories of information: (a) "information underlying the government's judgment about the threat posed to national security by the (CPUSA) and by William Albertson as one of CPUSA's top officials," disclosure of which "would enable foreign intelligence analysts to determine the particular sources and methods from and by which the information was gained"; (b) "information about the full circumstances surrounding actions which the FBI undertook regarding William Albertson," disclosure of which "would reveal sensitive sources and methods to informed foreign intelligence analysts and thereby prevent the use of such sources and methods by this government in its foreign security investigations"; and (c) "intelligence sources and methods targeted at parties other than the Albertsons through which important information about William Albertson was gained." App., infra, 37a. The Attorney General explained that disclosure of the privileged information "would reveal current investigative interests and thereby prejudice ongoing investigations," "would reveal the objectives of these current foreign security initiatives and very likely would lead to the implementation of countermeasures which would frustrate United States' intelligence efforts," and would lead to the exposure of human sources, which would reduce their effectiveness and deter both them and potential sources from providing assistance to the government. Id. at 37a-38a (emphasis added). The Attorney General also asserted that "disclosure of the information underlying the government's judgment about the threat posed by CPUSA and the activities of its national leadership could harm (our) diplomatic relations and possibly have a chilling effect on United States relations with various foreign countries." Id. at 38a. The Attorney General stated that, in making the claim of privilege, he had considered the prior release under the Freedom of Information Act (FOIA) of "certain surveillance records pertaining to intelligence activities directed at the Albertsons," /3/ but he concluded that those disclosures "do not reduce the risk of the serious harm to national security that would flow from further specification" of the three categories of privileged information. App., infra, 38a-39a. He further stated that any additional particularization of that information on the open record would risk damaging disclosure. Id. at 39a. The Attorney General referred the court to a 28-page classified declaration by James H. Geer, Assistant Director of the FBI's Intelligence Division, for "a more complete explanation of how the national security would be harmed by disclosures in this case." Ibid. /4/ The Attorney General stated that he found Mr. Geer's explanation persuasive, that he based the claim of privilege on the Geer declaration "as well as other information (he had) been made aware of as Attorney General," and that FBI Director Webster concurred in the claim of privilege. Ibid. The government moved to dismiss the action on the ground that the information covered by the claim of privilege went to the core of this case. As a consequence, the motion argued, the government could not answer the complaint, discovery could not proceed, and neither party could make its case without revealing the privileged information. On March 16, 1987, the district court, which had been furnished the Geer declaration, denied the motion with no discussion and ordered the government to proceed with discovery. App., infra, 29a. /5/ 3. The government, after unsuccessfully pursuing an interlocutory appeal, /6/ filed a petition for a writ of mandamus in the court of appeals. On January 27, 1988, the court of appeals ordered the district court to review the classified Geer declaration if it had not already done so or, if it considered such examination premature, to explain why. The court of appeals ordered the district court to provide within 60 days an explanation for its denial of the government's motion to dismiss on state-secrets grounds. App., infra, 30a-31a. On March 22, 1988, the district court, after review of the classified Geer declaration, adhered to its prior ruling denying the government's motion to dismiss. App., infra, 23a-28a. In that court's view, this is not a case where "the core of (respondent's) claim directly implicates state secrets. * * * The investigation, conduct and techniques at issue in this suit are not state secrets; information on these specific activities was released by the FBI in response to a FOIA request." Id. at 25a-26a. Moreover, according to the court, "the information the government seeks to protect is not such that defendant would necessarily prevail if it were admitted into evidence." Id. at 26a. The court added that it was unwilling at this stage of the case to determine the general relevancy of the information covered by the claim of privilege. It stated that relevancy and privilege should instead be determined on an item-by-item basis and that, based on its own experience with litigation involving sensitive information, it was confident that "the government's security concerns can be accommodated." Ibid. The district court asserted that the Geer declaration contained both specific information whose disclosure would be threatened by continued litigation and "conclusory statements regarding the impact of disclosure on international foreign relations and national security." App., infra, 27a. The court understood the government to be arguing that the specific information included in the declaration, "most of which relates to events that occurred well over 20 years ago and involved players who are now deceased, (1) is necessary to the litigation, (2) would be sought by plaintiffs, (3) is relevant, and (4) could not be protected through carefully controlled discovery and successful assertions of the state secrets privilege on an item-by-item basis." Id. at 27a-28a. The court concluded, after "review of the legal authority cited by the parties and the Geer affidavit," that the government's argument was not warranted and "that dismissal of the case at this stage of the litigation (was) not appropriate." Id. at 28a. 4. a. On April 14, 1989, the court of appeals denied the government's petition for a writ of mandamus. App., infra, 1a-22a. The court began by setting forth general principles concerning the state secrets privilege, taking as its starting point the rationale of this Court in United States v. Reynolds, 345 U.S. 1 (1953), an FTCA case. When the head of a department invokes the state secrets privilege, the court itself must determine whether the circumstances warrant the privilege, although the court must show "the '"utmost deference"' to the executive's expertise in assessing privilege upon grounds of military or diplomatic security." App., infra, 5a-6a (quoting Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978) (Halkin I), itself quoting United States v. Nixon, 418 U.S. 683, 710 (1974)). The court must uphold the privilege "if the government shows that 'the information poses a reasonable danger to secrets of state.'" App., infra, 6a (quoting Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (Halkin II)). The privilege covers information whose disclosure would impair defense capabilities, would reveal intelligence-gathering methods or capabilities, or would disrupt diplomatic relations. App., infra, 6a-7a. Even information that may seem harmless standing alone must be protected under the privilege if its disclosure would, in combination with other information, allow a "'sophisticated intelligence analyst'" to construct a "'mosaic'" that reveals state secrets. App., infra, 6a (quoting Halkin I, 598 F.2d at 8). The state secrets privilege, the court continued, is absolute, and "'even the most compelling necessity cannot overcome the claim of privilege,' Reynolds, 345 U.S. at 11, because the 'balance has already been struck' in favor of protecting secrets of state over the interests of a particular litigant." App., infra, 7a-8a (quoting Halkin II, 690 F.2d at 990). Moreover, according to the court, the effect of a successful claim of privilege, whether the government is a party or not, is simply "to remove the evidence from the case." App., infra, 7a. The court elaborated: if the information is "essential to establishing plaintiff's prima facie case, dismissal is appropriate"; and if the information is "related not to the plaintiff's claim, but rather to the defense, summary judgment against the plaintiff is proper if the district court decides that the privileged information, if available to the defendant, would establish a valid defense to the claim." Id. at 8a. The court added that "(d)ismissal of a suit, and the consequent denial of a forum without giving the plaintiff her day in court, however, is indeed draconian." Id. at 9a. After setting forth those general principles, the court of appeals emphasized that the case before it arose in a special procedural posture -- on a mandamus petition. App., infra, 9a-10a. The court determined that it could grant such "extraordinary" relief only if it found that the case involved "'exceptional circumstances amounting to a judicial usurpation of power.'" Id. at 11a (quoting Will v. United States, 389 U.S. 90, 95 (1967)). The court concluded that the government "failed to demonstrate any exceptional circumstances justifying the rare exercise of our mandamus power in this case." App., infra, 15a. The court of appeals rejected the government's contention that the district court's ruling was a denial of the claim of privilege. App., infra, 11a. Rather, the court said, the district court had decided only that the privilege did not justify dismissal at this early stage of the case but instead could be applied on an item-by-item basis. Id. at 12a. The court of appeals accepted that conclusion for several reasons, relying on the principle that, because evidentiary privileges hinder the ascertainment of truth, they must be limited to their narrowest purposes. Id. at 13a. The court stated that in this case, "the information remains in the Government's custody," and the government can assert privilege when information is sought; that the parties had agreed to "mechanisms limiting the disclosure of certain documents, including redaction of names"; and that the case would be tried to the bench. Id. at 12a. The court also explained that, "because much of the information sought by discovery has already been obtained by (respondent) under (FOIA), her counsel (stated) at oral argument that they believe they may be able to put in her case without pursuing additional discovery." Id. at 12a-13a. The court reasoned from that concession that "the exercise of the privilege is substantially narrowed to whether the Government in its defense may be required to disclose state secrets." Id. at 13a. Because the government "retains a large measure of control and judgment over its own evidence, * * * the possibility of unauthorized disclosure of confidential material" is strongly reduced. Ibid. With respect to the Geer declaration's description of "the harms that would be dealt to our nation's security and diplomatic interests were this case to continue through the normal course of litigation," the court of appeals said: "we, like the district court, remain unpersuaded." App., infra, 13a. The court elaborated (ibid.): Because of the long lapse of time, the release by the Government to plaintiff of important information under (FOIA), and the difficulties of relating the relevance in substance and time of much of the information in the Geer affidavit to the case at hand, we cannot reasonably determine merely on the basis of this in camera affidavit that evidence of the Government's activities of twenty to thirty years ago will result in the disclosure of state secrets today. Noting its belief that the district court could disentangle "the sensitive from the nonsensitive information as the case unfolds" (ibid.), the court of appeals concluded that "the district court acted well within its discretion in rejecting the Government's assertion in the Geer affidavit that item-by-item assessment of the privilege could not protect any national interests at stake in this litigation." Id. at 14a. /7/ b. Judge Ginsburg concurred in the denial of a writ of mandamus directing dismissal of the case but dissented insofar as the court of appeals refused to preclude discovery. App., infra, 16a-22a. The factual basis for his conclusion that discovery should not proceed is explained in a portion of his opinion discussing the classified Geer declaration and, therefore, largely withheld from publication. /8/ In the public portion of his opinion, however, Judge Ginsburg stated that it was "perfectly clear that any further discovery" would result in disclosures that would pose a serious risk to the personal safety of persons who have assisted the government in its investigations, would adversely affect current foreign intelligence activities of the government, and would damage our foreign relations and national security. Id. at 16a. He added: "Nor can any system of item-by-item rulings by the district court be concocted so as to avoid these most untoward consequences." Ibid. See also id. at 18a ("there are no avenues of discovery that are not blocked by the state secrets privilege"). In these circumstances, Judge Ginsburg concluded, mandamus was "the uniquely appropriate way" to correct the district court and thereby prevent "disclosure of exceedingly sensitive national security information." Id. at 21a. While dissenting with respect to discovery, Judge Ginsburg agreed with the majority that the privilege did not require dismissal. App., infra, 17a-20a. He recognized (id. at 17a) that, as this Court held in Totten v. United States, 92 U.S. 105, 107 (1875), "public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated." But in his view, this case need not be dismissed because respondent had indicated at oral argument that "she was prepared to proceed without any further discovery, since the information obtained through her FOIA request is sufficient to make out a prima facie case on her claims under New York tort law." App., infra, 19a. /9/ Following the decision in Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983), cert. denied, 465 U.S. 1038 (1984), Judge Ginsburg concluded that dismissal was not required because respondent was not "'manifestly unable to make out a prima facie case without the requested information'" (App., infra, 19a (quoting 709 F.2d at 65)) and because the government could put on a defense relying on the privileged information "on an ex parte, in camera basis" (App., infra, 20a (citing 709 F.2d at 69-70 & n.78)). /10/ c. Following the court of appeals' denial of the writ of mandamus, the district court stayed discovery until issuance of the mandate by the court of appeals but ordered the government to answer the complaint within ten days of its order of May 15, 1989. App., infra, 32a. The court of appeals subsequently granted a stay of discovery for 30 days or until disposition of a petition for a writ of certiorari filed within that time; but the court denied a stay of the filing of an answer, with Judge Ginsburg dissenting on the ground that the government had demonstrated a "substantial possibility that the national security will be harmed if it is required to answer the complaint." Id. at 33a-34a. On May 26, 1989, the Chief Justice stayed the filing of the answer pending timely filing and disposition of a petition for a writ of certiorari. Id. at 35a. REASONS FOR GRANTING THE PETITION Cases involving a state secrets privilege are rare, and cases involving a state secrets privilege that goes to the core of the suit are rarer still, because the privilege cannot be and is not claimed lightly. The Attorney General here has invoked the state secrets privilege in order to protect current intelligence sources and methods, continuing intelligence and counterintelligence operations, and current diplomatic relations. When cases of this kind arise, the fact that the privilege is absolute means that courts are obliged to take whatever steps are necessary, including preclusion of discovery and dismissal of the suit, to ensure that disclosure of the information covered by the privilege is not threatened. The courts are also obliged, after examination of the privilege claim, to give the utmost deference to the Executive Branch's assessment of the impact of disclosure on current national security interests. In this case, the court of appeals, like the district court, departed from its proper role in reviewing the claim of privilege and misunderstood the necessary consequences of the claim. First, the court of appeals improperly second-guessed the amply supported explanation of the current national interests in protecting the privileged information. Second, it mistakenly ignored the compelling reasons that discovery cannot proceed in this case. Finally, it erroneously judged that the litigation could continue without jeopardizing the claim of privilege and forcing the government to litigate in a largely secret, non-adversarial proceeding that would, without any congressional consent, make the government pay a price for its assertion of its state secrets privilege. The court's ruling, like most rulings in state secrets cases, is, to a significant extent, dependent on the particular facts. But the court's legal errors are of wider significance. And the court's refusal to grant mandamus relief, resulting in no small part from a misconception of the role of mandamus in a case such as this, creates a substantial risk of disclosure of information as to which the Attorney General has asserted a considered claim of privilege. This case is accordingly an appropriate one for this Court's review. 1. The basic rules governing claims of state secrets privilege have long been clear. The privilege covering military, diplomatic, and national security secrets /11/ has underpinnings in the constitutional separation of powers and the President's Article II powers with regard to foreign affairs and the national defense. Department of the Navy v. Egan, 108 S. Ct. 818, 824 (1988) (citing Reynolds and Totten); United States v. Nixon, 418 U.S. 683, 710 (1974); Reynolds, 345 U.S. at 6 & n. 9. When properly invoked in litigation, whether or not the government is a party, the privilege is absolute and bars disclosure of information within its scope, no matter how compelling the need for, or relevance of, the information to a proper resolution of the case. United States v. Reynolds, 345 U.S. at 7-8; Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1240 (4th Cir. 1985); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984); Molerio v. FBI, 749 F.2d 815, 821 (D.C. Cir. 1984); Ellsberg v. Mitchell, 709 F.2d at 57; Halkin II, 690 F.2d at 990; Halkin I, 598 F.2d at 7. There is no balancing of interests against a valid claim of privilege, for that balance has already been struck in favor of protecting state secrets. Halkin II, 690 F.2d at 990. Because of the absolute character of the privilege, a state secrets claim must be asserted by the head of the agency after personal consideration (Reynolds, 345 U.S. at 7-8), and the privilege cannot be and is not lightly asserted (id. at 7; Halkin II, 609 F.2d at 990; Ellsberg v. Mitchell, 709 F.2d at 57). When a claim of state secrets privilege is made, "(t)he court itself must determine whether the circumstances are appropriate for the claim." Reynolds, 345 U.S. at 8. The standard to be applied is whether "from all the circumstances of the case, * * * there is a reasonable danger that compulsion of the evidence will expose * * * matters which, in the interest of national security, should not be divulged." Id. at 10. See Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d at 402; Halkin I, 598 F.2d at 9. In applying that standard, the courts must carefully limit the intrusiveness of the inquiry; they must take care not to "forc(e) disclosure of the very thing the privilege is designed to protect" (Reynolds, 345 U.S. at 8, 10 (footnote omitted); see United States v. Zolin, No. 88-40 (June 21, 1989), slip op. 15-16); /12/ and they must follow this Court's admonition that "the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate" (Reynolds, 345 U.S. at 11. /13/ In reviewing a claim of state secrets privilege, moreover, the courts must accord the Executive's judgment the "utmost deference" -- not only because of the special Executive role in the areas covered by the privilege, but also because of the practical limits on courts' capacity to second-guess the Executive's judgments about national security, intelligence, and diplomatic matters. See United States v. Nixon, 418 U.S. at 710-711; Ellsberg v. Mitchell, 709 F.2d at 57-58 n.31; Halkin I, 598 F.2d at 8-9; see also CIA v. Sims, 471 U.S. 159, 176 (1985) ("judges * * * have little or no background in the delicate business of intelligence gathering"). The effect of a valid claim of privilege on a particular suit is determined largely by the fact that the privilege is absolute, even in the face of "the most compelling necessity" for the information. Reynolds, 345 U.S. at 11. A case may not be litigated in a manner that requires breach of the privilege; nor, when the government is sued, may the government be forced to pay the price of liability for validly invoking the privilege. In such a case, the government "is a defendant only on terms to which it has consented," and it has not consented in the FTCA to pay such a price. Id. at 12 (distinguishing cases where government must drop criminal prosecutions as price of invoking privilege). In some instances, as in Reynolds itself (see id. at 11), alternative avenues of discovery and proof may be available, and the case may go forward. In others, however, as in Totten v. United States, 92 U.S. 105 (1875), the privilege may go to the very subject matter of the case or otherwise be so pervasive in its effects as to preclude the litigation (whether the case is brought against the government, as in Totten, or brought by the government): "public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated." Totten, 92 U.S. at 107; see also Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 146-147 (1981) (quoting and applying Totten principle). /14/ 2. The privilege was properly asserted in this case. The Attorney General, the head of the agency (FBI) with control over the matter, claimed the privilege after his personal consideration of the matter, in consultation with the Director of the FBI and the FBI's Assistant Director for Intelligence. The privilege covers information affecting the national security, intelligence, and diplomatic interests of the United States; and the Attorney General's public claim, together with the detailed 28-page classified Geer declaration, amply explain both how those interests would be affected by disclosure of the information and how allowing discovery to proceed, or indeed, allowing the case to proceed at all, would risk disclosure of the privileged information. The court of appeals erred in giving insufficient deference to the Executive's judgments underlying the claim of privilege, in concluding that discovery could proceed without breaching the privilege, and in rejecting the government's submission that this is one of the rare Totten-type cases that cannot be litigated against the government. a. At the root of the court of appeals' decision is its simple disbelief of the Attorney General's determination that current national security, intelligence, and diplomatic interests would be jeopardized by disclosure of information concerning events of more than 25 years ago. The court said (App., infra, 13a): Because of the long lapse of time, the release by the Government to plaintiff of important information under (FOIA), and the difficulties of relating the relevance in substance and time of much of the information in the Geer affidavit to the case at hand, we cannot reasonably determine merely on the basis of this in camera affidavit that evidence of the Government's activities of twenty to thirty years ago will result in the disclosure of state secrets today. Given the ample support for the Attorney General's judgment that disclosure of the events of 1950-1964 would pose a "reasonable danger" of disclosure of matters that current national interests require not be divulged (Reynolds, 345 U.S. at 10), the court's second-guessing of the Executive's judgment represents a failure to give that judgment the "utmost deference" that is required (United States v. Nixon, 418 U.S. at 710-711). See also Department of Navy v. Egan, 108 S. Ct. at 825 ("the protection of classified information must be committed to the broad discretion of the agency responsible"). The Attorney General's declaration explains that disclosure of the three categories of information covered by the claim of privilege -- information underlying the government's assessment of the national security threat posed by the CPUSA and by William Albertson, information about the circumstances of FBI actions regarding William Albertson, and intelligence sources and methods that, while targeted at others, produced information about William Albertson -- would affect current national security interests. App., infra, 37a-38a. In particular, by revealing to informed foreign analysts sensitive intelligence sources and methods, disclosure would "reveal current investigative interests and thereby prejudice ongoing investigations." Ibid. (emphasis added). Disclosure would also frustrate "current foreign security initiatives" by allowing the implementation of countermeasures. Ibid. (emphasis added). Disclosure of human sources of FBI intelligence information would damage the future effectiveness and availability of such sources (ibid.), /15/ and disclosure of the basis for "the government's judgment about the threat posed by CPUSA and the activities of its national leadership" could harm current diplomatic relations (id. at 38a). /16/ Moreover, the Attorney General specifically stated that he had considered the FBI FOIA releases referred to by the court of appeals and had determined that those releases (which, as is apparent on their face, were redacted documents) did not reduce the risk to national security that would be caused by further disclosure of privileged information. Id. at 38a-39a. /17/ As Judge Ginsburg explained in the unpublished portion of his opinion, those clear assertions of current danger are thoroughly supported by the classified Geer declaration. The general basis for non-disclosure is set forth in paragraphs 12-14 of the Geer declaration and pages 3-4, 6-7, and 11-13 of Judge Ginsburg's opinion. The particular harms to intelligence methods are detailed at paragraphs 16-17 of the Geer declaration and page 11 of Judge Ginsburg's opinion. The particular harms to intelligence sources and operations are discussed at paragraphs 20 and 22 of the Geer declaration and pages 8-9 and 11 of Judge Ginsburg's opinion. The potential harms to diplomatic relations are described at paragraph 21 of the Geer declaration. With respect to the continuing need to protect information despite FBI FOIA releases, that too is carefully explained by the Geer declaration (at Paragraph 19; see Ginsburg Op. 12-13; see also id. at 6-7), but it hardly requires a classified explanation to appreciate the general point that release of some information may not only not lessen but in fact heighten the need to protect other, related information. /18/ In sum, the materials presented in the courts below specifically explain why the district court was wrong in concluding, based on the FOIA releases, that the "investigation, conduct and techniques at issue in this suit are not state secrets." App., infra, 26a. They also furnish a thorough explanation of the "reasonable danger" that disclosure of the information subject to the claim of privilege in this case would compromise the current national security interests of the United States. The court of appeals departed from its proper role when it simply disagreed, for no sound reason, with the Executive's well-founded judgment underlying the claim of privilege. /19/ b. Given that the privilege rests on a valid assessment of the current national interest in nondisclosure and must therefore be respected, it follows, in this case, that the court of appeals was required to preclude discovery at this stage of the litigation. Instead, the court stressed that the writ of mandamus sought by the government was available only for "'exceptional circumstances amounting to a judicial usurpation of power'" (App., infra, 11a (quoting Will v. United States, 389 U.S. 90, 95 (1967)) and then upheld as "well within (the district court's) discretion" its determination that discovery could go forward, and that privilege and relevance could be determined, on an item-by-item basis (App., infra, 12a-14a). In so doing, the court misconceived the proper role of mandamus in a case such as this. If, as in this extraordinary case, permitting any discovery to proceed would result in violation of the state secrets privilege, then the absolute character of the privilege requires that discovery be precluded; it does not permit the district court "discretion" to consider and to balance questions of privilege and relevance on an item-by-item basis. In short, the standards for granting mandamus do not alter the obligation to inquire whether preclusion of discovery is necessary to avoid a breach of the state secrets privilege. Mandamus is the proper remedy where irreparable harm from violation of a clear legal standard would otherwise occur. See Mallard v. United States District Court, 109 S. Ct. 1814, 1822 (1989). In this case, the district court's order that discovery should proceed constituted such a violation, and if not prevented, that violation will cause irreparable harm. The Geer declaration (at Paragraph 19 & n.4) and the unpublished portion of Judge Ginsburg's opinion (at 10-11) set forth the compelling reasons why the secrecy of the information covered by the privilege would be threatened by permitting discovery to go forward. Because public discussion of that explanation would itself threaten the privilege, we simply refer the Court to, and we rely on, the cited sources. Here we note briefly the inadequacy of the court of appeals' reasoning (App., infra, 12a-13a) on its own terms. First, the court of appeals was wrong in stating that "the information remains in the Government's custody." App., infra, 12a. As we pointed out in the district court, respondent "can be expected soon to notice depositions of former and present FBI Special Agents and others who may be knowledgeable about William Albertson's CPUSA activities and the activity alleged in the complaint." /20/ Second, the court of appeals observed (ibid.) that the parties had agreed to certain disclosure restrictions and that the case will be tried to the bench. But neither observation reduces the threat to the state secrets of permitting any discovery to proceed: in fact, the quite limited restrictions on disclosure simply do not address the central problem with allowing discovery that is identified in the Geer declaration and the opinion by Judge Ginsburg; and the fact that the case will be tried to the bench neither addresses that problem nor alleviates the problem of disclosure to respondent. Third, while the court of appeals pointed out that respondent had expressed a readiness to put on her case without additional discovery (id. at 12a-13a), respondent has not actually waived discovery, and her concession therefore cannot support the court of appeals' refusal to order that respondent not be permitted to proceed with discovery. In any event, even if respondent could put on her case without discovery, respondent's statement at oral argument, if construed to apply only to her own case, would not address the problem of discovery designed to test and to challenge the government's defense; yet such discovery meets the same dispositive objections to discovery in aid of respondent's affirmative case. In sum, nothing in the court of appeals' opinion supports its rejection of the compelling reasons why discovery cannot proceed in this case. c. The court of appeals erred not only in declining to preclude discovery based on the claim of state secrets privilege but in refusing to order dismissal of the case. Relying on its earlier decisions in Molerio v. FBI, 749 F.2d at 825, and in Ellsberg v. Mitchell, 709 F.2d at 65, 69-70 & n.78, the court suggested that dismissal was not required because (a) respondent said she could make out a prima facie case without any privileged information and (b) either the government could put on a defense ex parte and in camera or the privileged evidence would simply drop out of the case, presumably leaving the government defenseless. App., infra, 7a-8a, 12a-13a; see id. at 19a-20a) (Ginsburg, J., concurring and dissenting) (expressly relying on possibility of ex parte, in camera defense). /21/ That suggestion is incorrect, and under a proper analysis, this case should be dismissed. The court of appeals' approach would apparently allow a suit to go forward simply because the plaintiff can make out a prima facie case, regardless of the resulting effect on the nature of the proceeding or on the liability of the government. That approach departs from the well-established principle of Totten v. United States, 92 U.S. at 107 -- a case the majority did not even cite -- that an action may not proceed if it cannot be tried without disclosing privileged information. If the privilege covers the very subject matter of the litigation, or the trial of a case otherwise cannot take place without jeopardizing the state secrets, then dismissal is required whether it is the plaintiff or defendant that must rely on the privileged information for a fair trial. This is such a case. To begin, the government cannot, consistently with the privilege, file an answer that fully responds to the factual allegations of tortious conduct on which the case turns. Any selective answer would either directly disclose privileged information as to the admitted or denied allegations or would be indirectly revealing by focusing on the unanswered allegations and suggesting tacitly an admission or denial. The privilege expressly covers both what the FBI may have done and any reasons for what the FBI did -- "the full circumstances surrounding actions which the FBI undertook regarding William Albertson" (App., infra, 37a) and "information underlying the government's judgment about the threat posed to national security by the (CPUSA) and by William Albertson" (ibid.). In neither area can the government make admissions or denials. Beyond the stage of answering (and putting aside discovery), no trial could take place with regard to the full circumstances of what the FBI may have done and any reasons it may have had. Those subjects are centrally implicated by possible defenses that might be claimed under the FTCA (for example, the discretionary function exception, 28 U.S.C. 2680(a), or the exception for "libel, slander, misrepresentation, deceit, or interference with contract rights," 28 U. S.C. 2680(h)) as well as under the relevant principles of New York law. /22/ Moreover, depending on the allocation of burdens of proof, both what was done and its full context may be relevant not only to any defense the government may have but also to respondent's own case and, therefore, to the government's ability to rebut that case. Matters central to the adjudication of this case are thus covered by the state secrets privilege and cannot be disclosed. Yet, under the court of appeals' approach, either the government would have to pay the price of a judgment against it (if all of this privileged information simply drops out of the case) or the court would be compelled to conduct the bulk of the trial in a secret, non-adversarial proceeding. The first alternative would be patently improper, because, as Reynolds held, Congress did not give consent in the FTCA for the United States to be held liable for a valid claim of state secrets privilege. 345 U. S. at 12. /23/ The second alternative, for similar though somewhat less simple reasons, would be equally improper. A trial that takes place largely in secret and without adversarial presentation and testing of evidence is not the sort of trial that this Court's decision in Totten contemplates when it states that cases that cannot be tried without disclosure of privileged material must be dismissed. /24/ If a largely secret, non-adversarial trial could go forward, it is not apparent why an entirely secret, non-adversarial trial would not be satisfactory. Yet that option, of course, would almost always be available (it was available in Totten itself) and would, if accepted, render the Totten principle a virtual nullity. Moreover, a largely secret, non-adversarial proceeding in which the government would litigate the central issues in the case would itself jeopardize the privileged material. /25/ Even when material is presented only to a district court (whether to the judge alone or to clerks as well), there are significant risks to the security of the material, risks that would increase dramatically if the in camera proceeding embraced a substantial portion of a trial on the merits. See note 12, supra. A strong if subtle pressure would therefore be placed on the government to curtail its use of privileged information in challenging respondent's case and in putting on its own defense. That pressure alone would make the government pay a price for the assertion of the privilege, a price that the FTCA does not authorize. The government may likewise be unduly inhibited in litigating the case by the concern -- which is eminently reasonable in the present case -- that, even if no information leaked out of the in camera proceeding, a "sophisticated intelligence analyst" (Halkin I, 598 F.2d at 8) would be able to determine from the ultimate judgment of liability or no liability what the government must have admitted, denied, proved, or failed to prove in that proceeding. In short, the effect of litigating this case largely in a secret, non-adversarial proceeding would be not only to threaten disclosure of privileged information but to force the government to defend itself on terms to which Congress did not consent. See note 23, supra. /26/ In addition, the federal courts have an independent interest in avoiding the type of proceeding that would be necessary to try this case. A proceeding that is both ex parte and in camera requires the federal courts to abandon not only the tradition of open proceedings but the fundamental tradition of adversarial litigation as well. As shown by the obligation of federal courts to ensure sua sponte that cases before them meet Article III case or controversy limitations, the federal courts have institutional interests, independent of the parties' concerns, in not performing adjudicative functions foreign to their traditional roles. Similar interests are threatened by the type of proceeding envisioned by the lower courts in this case. As respondent has pointed out to this Court in this case, "(e)x parte proceedings offend the most fundamental principles of fairness and of our adversary system." No. A-936, Respondent's Objection to the Lodging of Any Classified Information Not Part of the Record Below at 1 (filed June 24, 1989). Cf. Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 282 (4th Cir. 1980) (en banc) (Phillips, J., dissenting) (dismissal required if a claim of state secrets "privilege so far obstructs normal proof in respect of the issues presented by the parties as to deprive the litigation process of its essential utility for fair resolution of those issues"). 3. This case is an extraordinary one, because important secrets of state are at issue, and continued litigation places those secrets at risk. For that reason, the court of appeals' ruling should not go unreviewed simply because the case is more fact-bound than most cases in which this Court grants review and does not present a sharp conflict among the circuits on a well-defined issue of law. The intrinsic importance of the case justifies review by this Court. In addition, the court of appeals' several errors in this case are of wider significance. First, as we have shown, the court of appeals' decision departs from the principles of Reynolds, Totten, and United States v. Nixon. Second, to the extent that the court followed the Ellsberg/Molerio principle that a case against the government should not be dismissed as long as the plaintiff can make out a prima facie case, the court reinforced a principle that not only is wrong but has not been adopted by any other courts of appeals. Third, the denial of mandamus, on the ground that the district court had not exceeded its "discretion," misconceived the role of mandamus in a case such as this and, in so doing, allowed a district court ruling to stand even though it posed a serious threat of irreparable harm to protected interests. Fourth, because the court second-guessed the Attorney General's judgment of current danger, and because the denial of any mandamus relief all but inevitably will lead to breach of the privilege, the court of appeals' ruling amounts to a denial of the claim of state secrets privilege. To our knowledge, this is the first time a court has effectively declined to sustain such a claim by subjecting the privileged information to precisely the risk of disclosure that the privilege protects against. /27/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General STUART E. SCHIFFER Acting Assistant Attorney General DAVID L. SHAPIRO Deputy Solicitor General RICHARD G. TARANTO Assistant to the Solicitor General BARBARA L. HERWIG FREDDI LIPSTEIN Attorneys JULY 1989 /1/ The Solicitor General is disqualified in this case. /2/ In 1962, the Subversive Activities Control Board found that William Albertson was a member of the CPUSA National Committee, a CPUSA official at state and local levels, and a CPUSA spokesman who instructed rank and file CPUSA members. See Transcript of Record at 24-25, Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965). Although Albertson appealed the Board's order that he register as a member of CPUSA -- an order later held invalid under the Fifth Amendment privilege against compulsory self-incrimination, Albertson v. Subversive Activities Control Board, supra -- he did not challenge the Board's findings of fact. See Albertson v. Subversive Activities Control Board, 332 F.2d 317, 319 (D.C. Cir. 1964), rev'd, 382 U.S. 70 (1965). The Jefferson Book Shop was associated with the Jefferson School of Social Science, which was ordered by the Subversive Activities Control Board to register as a communist front organization. See Jefferson School of Social Science v. Subversive Activities Control Board, 331 F.2d 76, 81 (D.C. Cir. 1963). /3/ A key factual allegation of respondent's complaint -- that in 1964 the FBI planted a bogus informant's report that was designed to and did discredit William Albertson with the CPUSA -- is based on certain partly redacted FBI FOIA releases. See Exhibits 1-4 to Lillie Albertson's Mem. In Opp. To Pet. For Writ of Mandamus, No. 87-5383 (D. C. Cir. filed June 20, 1988). /4/ The Geer declaration has been placed in a limited access safe at the Court. /5/ No discovery has yet taken place in this case. On April 17, 1987, the government filed a motion to stay all district court proceedings pending appellate review of the district court's state-secrets ruling. That motion remained pending until May 15, 1989 (after the appeals court ruled), at which time the district court, while ordering the government to answer the complaint, stayed discovery pending issuance of a mandate from the court of appeals. App., infra, 32a. On May 23, 1989, the court of appeals stayed discovery for 30 days unless the time was extended for good cause or unless a petition for a writ of certiorari was filed within that time. Id. at 33a-34a. By agreement of counsel, the stay of discovery is to continue pending the timely filing of a petition and its disposition by this Court. On May 26, 1989, the Chief Justice granted a stay of the requirement that the government answer the complaint, pending the timely filing of a petition for a writ of certiorari and its disposition by this Court. Id. at 35a. /6/ On October 2, 1987, the court of appeals dismissed the appeal. The court subsequently denied rehearing. The district court also denied a motion, made under 28 U.S.C. 1292(b) (Supp. V 1987), to certify for appeal the question of the privilege and its impact on the litigation. /7/ The court of appeals also concluded that the case presented no occasion for the exercise of a "supervisory" or "advisory" mandamus power. The court saw neither a persistent or deliberate disregard of rules by the district court nor a legal question of first impression. App., infra, 14a-15a. /8/ The FBI has reviewed Judge Ginsburg's opinion for derivative classification marking and has determined that some information may be disclosed. The government has asked the court to release the additional unclassified text of the opinion. The full text of the opinion has been lodged in a limited access safe in the office of the Clerk of this Court. /9/ Although the majority noted respondent's statement at oral argument (App., infra, 12a-13a), it nevertheless declined to preclude discovery. /10/ Judge Ginsburg noted that, in this case, unlike Molerio v. FBI, 749 F.2d 815, 825 (D.C. Cir. 1984), the court could not determine from its own review of the privileged materials that the plaintiff's claim lacked merit. "Here it is not at all clear that the Government's (secret) defense is dispositive (or even meritorious * * * under New York law)." App., infra, 20a. /11/ As the court of appeals recognized (App., infra, 6a-7a), the privilege is not limited to protecting only military secrets. See Ellsberg v. Mitchell, 709 F.2d at 57 (footnotes omitted) ("The various harms, against which protection is sought by invocation of the privilege, include impairment of the nation's defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments."); see also Molerio v. FBI, 749 F.2d at 820-821; National Lawyers Guild v. Attorney General, 96 F.R.D. 390, 395 (S.D.N.Y. 1982). /12/ Discussing the difficulty of the government's demonstrating the likelihood of harm without revealing the privileged information, the court pointed out in Ellsberg v. Mitchell, 709 F.2d at 57 n.31 (quoting Clift v. United States, 597 F.2d 826, 829 (2d Cir. 1979)): (T)he procedure that might be employed to deal with the foregoing problem -- ex parte, in camera examination of the requested material by the trial judge -- is not entirely safe. It is not to slight judges, lawyers or anyone else to suggest that any such disclosure carries with it serious risk that highly sensitive information may be compromised. In our own chambers, we are ill equipped to provide the kind of security highly sensitive information should have. /13/ The Reynolds Court immediately added that "even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake." 345 U.S. at 11 (footnote omitted). /14/ Dismissal may, of course, deprive a plaintiff of redress to which he would be entitled in the absence of the privilege, but in the rare case, like Totten, that presents a choice between disclosure and dismissal, the balance of interests has already been struck in favor of dismissal. See Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d 1236, 1238-1239 (4th Cir. 1985). /15/ In CIA v. Sims, 471 U.S. 159, 175 (1985), this Court stressed "the importance of providing intelligence sources with an assurance of confidentiality that is as absolute as possible." /16/ In the Internal Security Act of 1950, ch. 1024, Tit. I, Section 2, 64 Stat. 987-988, Congress made formal findings to the effect that certain organizations, called "communist-action organizations" (Section 3, 64 Stat. 989), were closely tied to foreign governments. In Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961), this Court affirmed an order of the Subversive Activities Control Board finding the CPUSA to be such an organization. /17/ Because of the serious impact of the claim of privilege on this litigation, Attorney General Thornburgh and FBI Director Sessions have recently reviewed the matters underlying that claim. Based on their current assessments, they, like former Attorney General Meese and former Director Webster, affirm that, notwithstanding the release of some pertinent information under FOIA, the matters covered by the original claim of privilege continue to warrant protection from disclosure. App., infra, 54a-55a (declaration of Attorney General Thornburgh). See Ellsberg v. Mitchell, 709 F.2d at 61 n.46; United States v. Ahmad, 499 F.2d 851, 854-855 (3d Cir. 1974). The original of the Attorney General's declaration has been lodged with the Clerk of the Court. The classified declaration of Director Sessions will be provided to the Court on request and under appropriate security procedures. /18/ In CIA v. Sims, 471 U.S. at 176-178, this Court recognized that intelligence sources may be protected from disclosure even if they are public and supply information that is already publicly available and that pieces of information that are not significant in isolation may take on new significance when viewed in context with other pieces of information. See also Halkin I, 598 F.2d at 8 (quoting United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied, 409 U.S. 1063 (1972)): It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate. As the Fourth Circuit Court of Appeals has observed: The significance of one item of information may frequently depend upon knowledge of many other items of information. What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context. The courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area. /19/ Additional material updating, and further supporting, the claim of privilege was reviewed by Attorney General Thornburgh and Director Sessions in determining that the claim should continue to be asserted. See note 17, supra. /20/ Memorandum of Points and Authorities in Support of United States' Motion to Dismiss 28 (filed Feb. 28, 1986) (footnote omitted). That memorandum appears at Tab A of the Appendix in Support of Lillie Albertson's Mem. in Opp. to Pet. for Writ of Mandamus in the court of appeals. /21/ Ellsberg suggested the ex parte, in camera defense as an alternative to dismissal and concluded that, where the privileged information is not in the possession of the private plaintiffs, dismissal "would be proper only if the plaintiffs were manifestly unable to make out a prima facie case without the requested information." 709 F.2d at 65, 69-70 & n.78. Molerio applied the Ellsberg rule, holding on the merits that the government's ex parte, in camera defense was valid. 749 F.2d at 825. /22/ The full circumstances of an act, including the reasons for it and its relation to any federal duties the alleged tortfeasors had, would seem to be relevant under the New York law relied on by respondent, either directly or as a necessary component of judging the outrageousness of the challenged conduct. See, e.g., Strapex Corp. v. Metaverpa N.V., 607 F. Supp. 1047, 1051-1052 (S.D.N.Y. 1985); Stratford Group, Ltd. v. Interstate Bakeries Corp., 590 F. Supp. 859, 865-866 (S. D.N.Y. 1984); Kajtazi v. Kajtazi, 488 F. Supp. 15, 20 (E.D.N.Y. 1978); James v. Saltsman, 99 A.D.2d 797, 798, 472 N.Y.S.2d 129, 132 (1984). See also Caban v. United States, 728 F.2d 68 (2d Cir. 1984) (federal law enforcement duties give defendant privilege against liability for alleged false imprisonment). /23/ (W)hen the government is a defendant, as under the Tort Claims Act, an adverse finding cannot be rendered against it as the price of asserting an evidentiary privilege. This is not one of the terms upon which Congress has consented that the United States be subjected to liability." E. Cleary, McCormick on Evidence Section 109, at 234 (2d ed. 1972). Nothing in the FTCA, which generally renders the government liable where a private person would be liable under state law (28 U.S. C. 1346(b), 2674), evinces a waiver of liability that would otherwise be barred by federal-law rights (except for sovereign immunity), including constitutionally based evidentiary privileges. Indeed, any such suggestion is especially implausible in the national security area, where the federal interest is of course dominant or even exclusive. /24/ Although Totten involved a claim against the government in contract, the Court's rationale applies to other litigation as well, including cases in tort or arising under statutes. See Reynolds, 345 U.S. at 6-7 & n.11, 11 n.26; Weinberger v. Catholic Action of Hawaii/ Peace Education Project, 454 U.S. at 146-147. /25/ Even aside from the objection to discovery discussed above, if discovery were allowed, the privilege would be threatened by respondent's incentive to probe as close to the privileged material as possible. See, e.g., Fitzgerald v. Penthouse Int'l, Ltd., 776 F.2d at 1241, 1243 & n.10; Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir. 1980) (en banc). /26/ In cases arising under the Invention Secrecy Act of 1951, 35 U. S.C. 181-188, by contrast, courts have concluded that Congress, in expressly providing a judicial remedy against the government in cases involving secret (and thus unpatentable) inventions, envisioned a (presumptively adversarial) proceeding in camera rather than an open trial. See Clift v. United States, 597 F.2d 826 (2d Cir. 1979); Halpern v. United States, 258 F.2d 36 (2d Cir. 1958). Cf. Loral Corp. v. McDonnell Douglas Corp., 558 F.2d 1130 (2d Cir. 1977) (in a case to which United States was not a party, court of appeals permitted substantial in camera proceedings to take place, where the proceeding was adversarial because the pertinent classified information was known to both parties). Unlike the Invention Secrecy Act, the FTCA furnishes no basis for an inference that Congress authorized the courts to try cases substantially in secret (and, here, non-adversarial) proceedings. /27/ In Ellsberg v. Mitchell, 709 F.2d at 60, a case involving certain wiretaps authorized by various Attorneys General, the court of appeals held that there was no reason why the privilege should extend to the question of which Attorney General had authorized which wiretaps, and the government conceded on appeal that the affidavits in support of the claim did not provide any explanation for concealing that information; the court sustained the privilege in all other respects. In Halkin I, 598 F.2d at 11, the district court had rejected the privilege with respect to certain NSA material, but that ruling was reversed on appeal. APPENDIX