479 F.

3d 296

Khaled EL-MASRI, Plaintiff-Appellant,

v.
UNITED STATES of America, Intervenor-Appellee, and
George J. Tenet; Premier Executive Transport Services; Keeler
& Tate Management Group, LLC; Aero Contractors, Limited;
Does 1-20, Defendants.
Morton Abramowitz; F. Allen "Tex" Harris; William C.
Harrop; Sam Hart; Edward L. Peck; William D. Rogers;
Pierre Shostal; E. Michael Southwick; Ward Thompson; Peter
Wolcott, Former United States Diplomats, Amici Supporting
Appellant.
No. 06-1667.

United States Court of Appeals, Fourth Circuit.

Argued November 28, 2006.
Decided March 2, 2007.

ARGUED: Ben Wizner, American Civil Liberties Union, New York, New
York, for Appellant. Gregory George Katsas, United States Department of
Justice, Civil Division, Appellate Section, Washington, D.C., for
Appellee. ON BRIEF: Ann Beeson, Melissa Goodman, American Civil
Liberties Union, New York, New York; Victor M. Glasberg, Victor M.
Glasburg & Associates, Alexandria, Virginia; Paul Hoffman, Schonbrun,
Desimone, Seplow, Harris & Hoffman, Venice, California; Rebecca
Glenberg, American Civil Liberties Union of Virginia, Richmond,
Virginia, for Appellant. Peter D. Keisler, Assistant Attorney General,
Jeffrey S. Bucholtz, Principal Deputy Assistant Attorney General,
Douglas Letter, Terrorism Litigation, H. Thomas Byron, III, Attorney,
Appellate Staff, United States Department of Justice, Washington, D.C.;
John A. Rizzo, Acting General, Central Intelligence Agency, Washington,
D.C.; Chuck Rosenberg, United States Attorney, R. Joseph Sher,
Assistant United States Attorney, Dennis C. Barghaan, Jr., Assistant
United States Attorney, Larry Lee Gregg, Assistant United States
Attorney, Office of the United States Attorney, Alexandria, Virginia, for
Appellee. Sidney S. Rosdeitcher, David M. Cave, Colin McNary, Paul,

Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, New York; Aziz
Huq, Brennan Center for Justice at NYU School of Law, New York, New
York, for Amici Supporting Appellant.
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge KING wrote the opinion, in which
Judge SHEDD and Judge DUNCAN joined.
KING, Circuit Judge.

Khaled El-Masri appeals from the dismissal of his civil action against former
Director of Central Intelligence George Tenet, three corporate defendants, ten
unnamed employees of the Central Intelligence Agency (the "CIA"), and ten
unnamed employees of the defendant corporations.1 In his Complaint in the
Eastern District of Virginia, El-Masri alleged that the defendants were involved
in a CIA operation in which he was detained and interrogated in violation of his
rights under the Constitution and international law. The United States
intervened as a defendant in the district court, asserting that El-Masri's civil
action could not proceed because it posed an unreasonable risk that privileged
state secrets would be disclosed. By its Order of May 12, 2006, the district
court agreed with the position of the United States and dismissed El-Masri's
Complaint. See El-Masri v. Tenet, 437 F.Supp.2d 530, 541 (E.D.Va.2006) (the
"Order"). On appeal, El-Masri contends that the district court misapplied the
state secrets doctrine and erred in dismissing his Complaint. As explained
below, we affirm.

I.
A.
2

On December 6, 2005, El-Masri, a German citizen of Lebanese descent, filed

his Complaint in this case, alleging, in substance, as follows: on December 31,
2003, while travelling in Macedonia, he was detained by Macedonian law
enforcement officials; after twenty-three days in Macedonian custody, he was
handed over to CIA operatives, who flew him to a CIA-operated detention
facility near Kabul, Afghanistan; he was held in this CIA facility until May 28,
2004, when he was transported to Albania and released in a remote area; and
Albanian officials then picked him up and took him to an airport in Tirana,
Albania, from which he travelled to his home in Germany. The Complaint
asserted that El-Masri had not only been held against his will, but had also been
mistreated in a number of other ways during his detention, including being

beaten, drugged, bound, and blindfolded during transport; confined in a small,

unsanitary cell; interrogated several times; and consistently prevented from
communicating with anyone outside the detention facility, including his family
or the German government. El-Masri alleged that his detention and
interrogation were
3

carried out pursuant to an unlawful policy and practice devised and

implemented by defendant Tenet known as "extraordinary rendition": the
clandestine abduction and detention outside the United States of persons
suspected of involvement in terrorist activities, and their subsequent
interrogation using methods impermissible under U.S. and international laws.

Complaint 3.

According to the Complaint, the corporate defendants provided the CIA with
an aircraft and crew to transport El-Masri to Afghanistan, pursuant to an
agreement with Director Tenet, and they either knew or reasonably should have
known that "Mr. El-Masri would be subjected to prolonged arbitrary detention,
torture and cruel, inhuman, or degrading treatment in violation of federal and
international laws during his transport to Afghanistan and while he was
detained and interrogated there." Complaint 61. El-Masri also alleges that
CIA officials "believed early on that they had the wrong person," and that
Director Tenet was notified in April 2004 that "the CIA had detained the wrong
person" in El-Masri. Id. 43.

The Complaint alleged three separate causes of action. The first claim was
against Director Tenet and the unknown CIA employees, pursuant to Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violations of El-Masri's Fifth
Amendment right to due process. Specifically, El-Masri contends that Tenet
and the defendant CIA employees contravened the Due Process Clause's
prohibition against subjecting anyone held in United States custody to treatment
that shocks the conscience or depriving a person of liberty in the absence of
legal process. El-Masri's second cause of action was initiated pursuant to the
Alien Tort Statute (the "ATS"), and alleged that each of the defendants had
contravened the international legal norm against prolonged arbitrary detention.
The third cause of action was also asserted under the ATS, and maintained that
each defendant had violated international legal norms prohibiting cruel,
inhuman, or degrading treatment.

On March 8, 2006, the United States filed a Statement of Interest in the

underlying proceedings, pursuant to 28 U.S.C. 517, and interposed a claim of

the state secrets privilege.2 The then Director of the CIA, Porter Goss,
submitted two sworn declarations to the district court in support of the state
secrets privilege claim. The first declaration was unclassified, and explained in
general terms the reasons for the United States' assertion of privilege. The other
declaration was classified; it detailed the information that the United States
sought to protect, explained why further court proceedings would unreasonably
risk that information's disclosure, and spelled out why such disclosure would be
detrimental to the national security (the "Classified Declaration"). Along with
its Statement of Interest, the United States filed a motion to stay the district
court proceedings pending resolution of its privilege claim; the next day, March
9, 2006, the court granted the requested stay. On March 13, 2006, the United
States formally moved to intervene as a defendant in the district court
proceedings. Contemporaneous with seeking to intervene as a defendant, the
United States moved to dismiss the Complaint, contending that its interposition
of the state secrets privilege precluded the litigation of El-Masri's causes of
action.
8

El-Masri responded that the state secrets doctrine did not necessitate dismissal
of his Complaint, primarily because CIA rendition operations, including ElMasri's alleged rendition, had been widely discussed in public forums. In
support of this contention, Steven Macpherson Watt, a human rights adviser to
the American Civil Liberties Union, filed a sworn declaration in the district
court, dated April 7, 2006, in which he asserted that United States officials
including Secretary of State Condoleezza Rice, White. House Press Secretary
Scott McClellan, and Directors Tenet and Gosshad publicly acknowledged
that the United States had conducted renditions.3 Watt also observed that
international human rights organizations had issued statements on various
United States rendition operations, including El-Masri's alleged rendition, and
that at least one such release had described the use of privately owned aircraft
in the renditions of El-Masri and others. Additionally, according to Watt, the
European Parliament and the Council of Europe had commenced investigations
into possible European cooperation in United States renditions, and similar
inquiries were pending in eighteen European countries.

Watt further asserted that "[m]edia reports on the rendition program generally,
and Mr. El-Masri's rendition specifically, are too numerous to assemble." Watt
Declaration 26. According to Watt, these media reports revealed the existence
of secret CIA detention facilities , where some rendition, subjects were held, as
well as the United States'"modus operandi" for conducting renditions: "masked
men in an unmarked jet seize their target, cut off his clothes, put him in a
blindfold and jumpsuit, tranquilize him and fly him away." Id. 26(vi). And,

Watt represented, the news media had documented some of the details of ElMasri's alleged rendition, including the underlying "decision-making process"
and the roles of the German and Macedonian governments. Id. 26(viii).
10

On May 12, 2006, after receiving the parties' memoranda and declarations, and
after oral argument of the matter, the district court concluded that the claim of
the state secrets privilege was valid, and that, "given the application of the
privilege to this case, the United States' motion to dismiss must be ... granted."
See Order, 437 F.Supp.2d at 541. El-Masri has appealed from the Order and
corresponding judgment of dismissal, and we possess jurisdiction pursuant to
28 U.S.C. 1291.

B.
11

We review de novo a district court's "legal determinations involving state

secrets," including its decision to grant dismissal of a complaint on state secrets
grounds. Sterling v. Tenet, 416 F.3d 338, 342 (4th Cir.2005).

C.
12

In the period after the district court's dismissal of El-Masri's Complaint, his
alleged renditionand the rendition operations of the United States generally
have remained subjects of public discussion. In El-Masri's two additions to
the body of public information on these topics are especially significant in this
appeal. First, on June 7, 2006, the Council of Europe released a draft report on
alleged United States renditions and detentions involving the Council's member
countries. This report concluded that El-Masri's account of his rendition and
confinement was substantially accurate. Second, on September 6, 2006, in a
White House address, President Bush publicly disclosed the existence of a CIA
program in which suspected terrorists are detained and interrogated at locations
outside the United States. The President declined, however, to reveal any of this
CIA program's operational details, including the locations or other
circumstances of its detainees' confinement.

II.
13

El-Masri maintains on appeal, that the district court misapplied the state secrets
doctrine in dismissing his Complaint without requiring any responsive
pleadings from the defendants or permitting any discovery to be conducted.
Importantly, El-Masri does not contend that the state secrets privilege has no
role in these proceedings. To the contrary, he acknowledges that at least some
information important to his claims is likely to be privileged, and thus beyond

his reach. But he challenges the court's determination that state secrets are so
central to this matter that any attempt at further litigation would threaten their
disclosure. As explained below, we conclude that the district court correctly
assessed the centrality of state secrets in this dispute. We therefore affirm its
Order and the dismissal of El-Masri's Complaint.
A.
1.
14

Under the state secrets doctrine, the United States may prevent the disclosure of
information in a judicial proceeding if "there is a reasonable danger" that such
disclosure "will expose military matters which, in the interest of national
security, should not be divulged." United States. v. Reynolds, 345 U.S. 1, 10, 73
S.Ct. 528, 97 L.Ed. 727 (1953). Reynolds, the Supreme Court's leading
decision on the state secrets privilege, established the doctrine in its modern
form. There, an Air Force B-29 bomber had crashed during testing of secret
electronic equipment, killing three civilian observers who were on board. Their
widows sued the United States under the Federal Tort Claims Act, and they
sought discovery of certain Air Force documents relating to the crash. The Air
Force refused to disclose the documents and filed a formal "Claim of
Privilege," contending that the plane had been on "a highly secret mission of
the Air Force," and that disclosure of the requested materials would "seriously
hamper[ ] national security, flying safety and the development of highly
technical and secret military equipment." Id. at 4-5, 73 S.Ct. 528.

15

The Court sustained the Air Force's refusal to disclose the documents sought by
the plaintiffs, concluding that the officials involved had properly invoked the
"privilege against revealing military secrets." 345 U.S. at 6-7, 73 S.Ct. 528.
This state secrets privilege, the Court observed, was "well established in the law
of evidence." Id. The Court relied in part on Greenleaf's classic evidence
treatise, which traced the recognition of a privilege for state secrets to the 1807
treason trial of Aaron Burr. See I Simon Greenleaf & John Henry Wigmore, A
Treatise on the Law of Evidence 251 n.5 (16th ed. 1899); United States v.
Burr, 25 F. Cas. 30, 37 (Marshall, Circuit Justice, C.C.D. Va. 1807) (No.
14,692D) (observing that, in appropriate circumstances, government may refuse
to disclose confidential state matters in judicial proceedings). The Reynolds
Court also reviewed a long line of decisions, both American and English, that
had recognized and refined a privilege for state secrets. These included Totten
v. United States, where, in 1875, the Supreme Court affirmed the dismissal of
an action for breach of a secret espionage contract, concluding that "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." 92 U.S. 105, 107, 23 L.Ed. 605 (1875).
16

2.

Although the state secrets privilege was developed at common law, it performs
a function of constitutional significance, because it allows the executive branch
to protect information whose secrecy is necessary to its military and foreignaffairs responsibilities. Reynolds itself suggested that the state secrets doctrine
allowed the Court to avoid the constitutional conflict that might have arisen had
the judiciary demanded that the Executive disclose highly sensitive military
secrets. See 345 U.S. at 6, 73 S.Ct. 528. In United States v. Nixon, the Court
further articulated the doctrine's constitutional dimension, observing that the
state secrets privilege provides exceptionally strong protection because it
concerns "areas of Art. II duties [in which] the courts have traditionally shown
the utmost deference to Presidential responsibilities." 418 U.S. 683, 710, 94
S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The Nixon Court went on to recognize
that, to the extent an executive claim of privilege "relates to the effective
discharge of a President's powers, it is constitutionally based." Id. at 711, 94
S.Ct. 3090. Significantly, the Executive's constitutional authority is at its
broadest in the realm of military and foreign affairs. The Court accordingly has
indicated that the judiciary's role as a check on presidential action in foreign
affairs is limited. See, e.g., Jama v. Immigration & Customs Enforcement, 543
U.S. 335, 348, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (recognizing judiciary's
"customary policy of deference to the President in matters of foreign affairs");
Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct.
431, 92 L.Ed. 568 (1948) (prescribing limited judicial role in foreign policy
matters, especially those involving "information properly held secret").
Moreover, both the Supreme Court and this Court have recognized that the
Executive's constitutional mandate encompasses the authority to protect
national security information. See Dep't of the Navy v. Egan, 484 U.S. 518,
527, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (observing that "authority to protect
[national security] information falls on the President as head of the Executive
Branch and as Commander in Chief'); United States v. Marchetti, 466 F.2d
1309, 1315 (4th Cir.1972) ("Gathering intelligence information and the other
activities of the [CIA], including clandestine affairs against other nations, are
all within the President's constitutional responsibility for the security of the
Nation as the Chief Executive and as Commander in Chief of our Armed
forces."). The state secrets privilege that the United States has interposed in this
civil proceeding thus has a firm foundation in the Constitution, in, addition to
its basis in the common law of evidence.

17

A court faced with a state secrets privilege question is obliged to resolve the
matter by use of a three-part analysis. At the outset, the court must ascertain
that the procedural requirements for invoking the state secrets privilege have
been satisfied. Second, the court must decide whether the information sought to
be protected qualifies as privileged under the state secrets doctrine. Finally, if
the subject information is determined to be privileged, the ultimate question to
be resolved is how the matter should proceed in light of the successful privilege
claim.

a.
18
19

The procedural requirements for invoking the state secrets privilege are set
forth in Reynolds, which derived them largely from prior decisions on the
subject. First, the state secrets privilege must be asserted by the United States.
See 345 U.S. at 7, 73 S.Ct. 528. It "belongs to the Government and . . . can
neither be claimed nor waived by a private party." Id. Second, "Where must be
a formal claim of privilege, lodged by the head of the department which has
control over the matter." Id. at 7-8, 73 S.Ct. 528. Third, the department head's
formal privilege claim may be made only "after actual personal consideration
by that officer?' Id. at 8, 73 S.Ct. 528. Reynolds emphasized that the state
secrets privilege "is not to be lightly invoked," and the foregoing constraints on
its assertion give practical effect to that principle. Id. at 7, 73 S.Ct. 528.

b.
20
21

After a court has confirmed that the Reynolds procedural prerequisites are
satisfied, it must determine whether the information that the United States
seeks to shield is a state secret, and thus privileged from disclosure. This
inquiry is a difficult one; for it pits the judiciary's search for truth against the
Executive's duty to maintain the nation's security. The Reynolds Court
recognized this tension, observing that "[j]udicial control over the evidence in a
case cannot be abdicated to the caprice of executive officers"no matter how
great the interest in national securitybut that the President's ability to
preserve state secrets likewise cannot be placed entirely at the mercy of the
courts. 345 U.S. at 9-10, 73 S.Ct. 528. Moreover, a court evaluating a claim of
privilege must "do so without forcing a disclosure of the very thing the
privilege is designed to protect."

22

The Reynolds Court balanced those concerns by leaving the judiciary firmly in
control of deciding whether an executive assertion of the state secrets privilege
is valid, but subject to a standard mandating restraint in the exercise of its
authority. A court is obliged to honor the Executive's assertion of the privilege

if it is satisfied, "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." Reynolds,
345 U.S. at 10, 73 S.Ct. 528. In assessing the risk that such a disclosure might
pose to national security, a court is obliged to accord the "utmost deference" to
the responsibilities of the executive branch. Nixon, 418 U.S. at 710, 94 S.Ct.
3090. Such deference is appropriate not only for constitutional reasons, but also
practical ones: the Executive and the intelligence agencies under his control
occupy a position superior to that of the courts in evaluating the consequences
of a release of sensitive information. In the related context of confidentiality
classification decisions, we have observed that "[t]he courts, of course, are illequipped to be come sufficiently steeped in foreign intelligence matters to serve
effectively in the review of secrecy classifications in that area." United States v.
Marchetti, 466 F.2d 1309, 1318 (4th Cir.1972). The executive branch's
expertise in predicting the potential consequences of intelligence disclosures is
particularly important given the sophisticated nature of modern intelligence
analysis, in which "[t]he significance of one item of information may frequently
depend upon knowledge of many other items of information," and "[w]hat 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." Id. In the same vein, in those situations where the state secrets
privilege has been invoked because disclosure risks impairing our foreign
relations, the President's assessment of the diplomatic situation is entitled to
great weight.
23

The Executive bears the burden of satisfying a reviewing court that the
Reynolds reasonable-danger standard is met. A court considering the
Executive's assertion of the state secrets privilege, however, must take care not
to "forc[e] a disclosure of the very thing the privilege is designed to protect" by
demanding more information than is necessary. Reynolds, 345 U.S. at 8, 73
S.Ct. 528. Frequently, the explanation of the department head who has lodged
the formal privilege claim, provided in an affidavit or personal declaration, is
sufficient to carry the Executive's burden. See, e.g., Sterling v. Tenet, 416 F.3d
338, 345 (4th Cir.2005) (relying on declarations of CIA Director); Reynolds,
345 U.S. at 5, 73 S.Ct. 528 (relying on Claim of Privilege by Secretary of Air
Force and affidavit of Air Force Judge Advocate General). In some situations, a
court may conduct an in camera examination of the actual information sought
to be protected, in order to ascertain that the criteria set forth in Reynolds are
fulfilled. See Sterling, 416 F.3d at 345. The degree to which such a reviewing
court should probe depends in part on the importance of the assertedly
privileged information to the position of the party seeking it. See Reynolds, 345
U.S. at 11, 73 S.Ct. 528. "Where there is a strong showing of necessity, the

claim of privilege should not be lightly accepted . . . ." Id. On the other hand,
"even the most compelling necessity cannot overcome the claim of privilege if
the court is ultimately satisfied that military secrets are at stake." Id. Indeed, in
certain circumstances a court may conclude that an explanation by the
Executive of why a question cannot be answered would itself create an
unacceptable danger of injurious disclosure. See id. at 9, 73 S.Ct. 528. In such a
situation, a court is obliged to accept the executive branch's claim of privilege
without further demand. See id.
24

After information has been determined to be privileged under the state secrets
doctrine, it is absolutely protected from disclosureeven for the purpose of in
camera examination by the court. On this point, Reynolds could not be more
specific: "When . .. the occasion for the privilege is appropriate, . 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." 345 U.S. at 10, 73 S.Ct. 528. Moreover, no attempt is made to
balance the need for secrecy of the privileged information against a party's need
for the information's disclosure; a court's determination that a piece of evidence
is a privileged state secret removes it from the proceedings entirely. See id. at
11, 73 S.Ct. 528.

c.
25
26

The effect of a successful interposition of the state secrets privilege by the

United States will vary from case to case. If a proceeding involving state secrets
can be fairly litigated without resort to the privileged information, it may
continue. But if " the circumstances make clear that sensitive military secrets
will be so central to the subject matter of the litigation that any attempt to
proceed will threaten disclosure of the privileged matters,' dismissal is the
proper remedy." Sterling, 416 F.3d at 348 (quoting DTM Research, LLC v. AT
& T Corp., 245 F.3d 327, 334 (4th Cir.2001)). The Supreme. Court has
recognized that some matters are so pervaded by state secrets as to be incapable
of judicial resolution once the privilege has been invoked. See Totten, 92 U.S.
at 107; Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528. Although Totten has come
to primarily represent a somewhat narrower principlea categorical bar on
actions to enforce secret contracts for espionageit rested, as we have already
observed, on the proposition that a cause cannot be maintained if its trial would
inevitably lead to the disclosure of privileged information. See 92 U.S. at 107.
And in Reynolds, while concluding that dismissal was unnecessary because the
privileged information was peripheral to the plaintiffs' action, the Court made
clear that where state secrets form the very subject matter of a court proceeding,
as in Totten, dismissal at the pleading stage"without ever reaching the

question of evidence"is appropriate. See 345 U.S. at 11 n. 26, 73 S.Ct. 528.

In a recent decision unanimously reaffirming Totten's validity, the Supreme
Court approvingly quoted Reynolds's discussion of Totten as a matter in which
dismissal on the pleadings was appropriate because the very subject matter of
the action was a state secret. See Tenet v. Doe, 544 U.S. 1, 9, 125 S.Ct. 1230,
161 L.Ed.2d 82 (2005).
27

Our own decisions applying the state secrets privilege have also recognized
that, in certain proceedings, the unavailability of privileged state secrets as
evidence will necessarily lead to dismissal. In Farnsworth Cannon, Inc. v.
Grimes, an action alleging tortious interference with a classified contract to
perform services for the Navy, our en bane Court affirmed the district court's
dismissal on state secrets grounds. See 635 F,2d 268 (4th Cir.1980). We
reasoned that privileged secrets were so central to the dispute that "[i]n an
attempt to make out a prima facie case during an actual trial, the plaintiff and
its lawyers would have every incentive to probe as close to the core secrets as
the trial judge would permit." Id. at 281. "Such probing in open court," we
concluded, "would inevitably be revealing," and dismissal was therefore
warranted. Id.

28

In Fitzgerald v. Penthouse International, Ltd., in 1985, we affirmed the district

court's dismissal, under the state secrets doctrine, of an action alleging that a
magazine article on the Navy's classified marine mammal program had
libelously accused the plaintiff of espionage. See 776 F2d 1236, 1237-38 (4th
Cir.1985). There, the Secretary of the Navy had filed a public declaration
asserting that the plaintiff's plan to call witnesses with knowledge of the Navy's
classified program risked the disclosure of military secrets, since those
witnesses could be questioned about the secret information to which they were
privy. See id. at 1242. In addition, the Secretary filed a separate, classified
declaration that elaborated on his reasons for asserting the state secrets
privilege in the case. See id. at 1243 n. 9. From all the circumstances, we
concluded that "there was simply no way this particular case could be tried
without compromising sensitive military secrets," and ruled that the district
court had not erred in dismissing it. Id. at 1243.

29

More recently, in our 2005 Sterling decision, we affirmed the dismissal of a

Title VII action initiated by an African-American CIA officer alleging unlawful
discriminatory practices by CIA management. See 416 F.3d at 341. We
concluded that state secrets were so central to that proceeding that it could not
be litigated given the Executive's invocation of the privilege. Id. at 346-48. The
evidence in the dispute would have consisted primarily of documents and
testimony regarding the assignments and performance evaluations of CIA

operatives, and many of the necessary witnesses were individuals whose very
identities were state secrets. Id. at 347-48. Indeed, as Judge Wilkinson
explained, "the whole object of the suit and of the discovery [was] to establish a
fact that is a state secretnamely, the methods and operations, of the Central
Intelligence Agency." Id. at 348 (internal quotation marks and citation omitted).
In those circumstances, dismissal was deemed appropriate.
30

Our sister circuits have likewise recognized that the unavailability of privileged
information may, in some instances, necessarily lead to dismissal. See Kasza v.
Browner, 133 F.3d 1159, 1170 (9th Cir. 1998) (affirming dismissal, on state
secrets grounds, of action alleging that Air Force had unlawfully handled
hazardous waste in classified operating area); Black v. United States, 62 F.3d
1115, 1118-19 (8th Cir. 1995) (affirming dismissal, on state secrets grounds, of
action alleging that executive branch officials had engaged in "campaign of
harassment and psychological attacks" against plaintiff); Bareford v. Gen.
Dynamics Corp., 973 F.2d 1138, 1140 (5th Cir.1992) (affirming dismissal, on
state secrets grounds, of action alleging manufacturing and design defects in
military weapons system); Halkin v. Helms, 690 F.2d 977, 981 (D.C.Cir.1982)
(affirming dismissal, on state secrets grounds, of action alleging unlawful CIA
surveillance); cf. Tenenbaum v. Simonini, 372 F.3d 776, 777-78 (6th Cir.2004)
(affirming summary judgment because no defense was available without resort
to privileged state secrets).

3.
31

B.
1.

To summarize, our analysis of the Executive's interposition of the state secrets

privilege is governed primarily by two standards. First, evidence is privileged
pursuant to the state secrets doctrine if, under all the circumstances of the case,
there is a reasonable danger that its disclosure will expose military (or
diplomatic or intelligence) matters which, in the interest of national security,
should not be divulged. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528. Second, a
proceeding in which the state secrets privilege is successfully interposed must
be dismissed if the circumstances make clear that privileged information will
be so central to the litigation that any attempt to proceed will threaten that
information's disclosure. See Sterling, 416 F.3d at 348; see also Reynolds, 345
U.S. at 11 n. 26, 73 S.Ct. 528; Totten, 92 U.S. at 107. With these controlling
principles in mind, and being cognizant of the delicate balance to be struck in
applying the state secrets doctrine, we proceed to our analysis of El-Masri's
contentions.

32

The question before us is whether the facts of this proceeding satisfy the
governing standard for, dismissal of an action, on state secrets grounds, as the
district court ruled.4 El-Masri essentially accepts the legal framework described
above. He acknowledges that the state secrets doctrine protects sensitive
military intelligence information from disclosure in court proceedings, and that
dismissal at the pleading stage is appropriate if state secrets are so central to a
proceeding that it cannot be litigated without threatening their disclosure. ElMasri contends, however, that the facts that are central to his claim are not state
secrets, and that the district court thus erred in dismissing his Complaint

a.
33
34

The heart of El-Masri's appeal is his, assertion that the facts essential to his
Complaint have largely been made public, either in statements by United States
officials or in reports by media outlets and foreign governmental entities. He
maintains that the subject of this action is simply "a rendition and its
consequences," and that its critical factsthe CIA's operation of a rendition
program targeted at terrorism suspects, plus the tactics employed thereinhave
been so widely discussed that litigation concerning them could do no harm to
national security. Appellant's Br. 38. As a result, El-Masri contends that the
district court should have allowed his case to move forward with discovery,
perhaps with special procedures imposed to protect sensitive information.

35

El-Masri's contention in that regard, however, misapprehends the nature of our

assessment of a dismissal on state secrets grounds. The controlling inquiry is
not whether the general subject matter of an action can be described without
resort to state secrets. Rather, we must ascertain whether an action can be
litigated without threatening the disclosure of such state secrets. Thus, for
purposes of the state secrets analysis, the "central facts" and "very subject
matter" of an action are those facts that are essential to prosecuting the action or
defending against it.

36

El-Masri is therefore incorrect in contending that the central facts of this

proceeding are his allegations that he was detained and interrogated under
abusive conditions, or that the CIA conducted the rendition program that has
been acknowledged by United States official Facts such as those furnish the
general terms in which El-Masri has related his story to the press, but
advancing a case in the court of public opinion, against the United States at
large, is an undertaking quite different from prevailing against specific
defendants in a court of law. If El-Masri's civil action were to proceed, the facts
central to its resolution would be the roles, if any, that the defendants played in
the events he alleges. To establish a prima facie case, he would be obliged to

produce admissible evidence not only that he was detained and interrogated, but
that the defendants were involved in his detention and interrogation in a manner
that renders them personally liable to him. Such a showing could be made only
with evidence that exposes how the CIA organizes, staffs, and supervises its
most sensitive intelligence operations. With regard to Director Tenet, for
example, El-Masri would be obliged to show in detail how the head of the CIA
participates in such operations, and how information concerning their progress
is relayed to him. With respect to the defendant corporations and their unnamed
employees, El-Masri would have to demonstrate the existence and details of
CIA espionage contracts, an endeavor practically indistinguishable from that
categorically barred by Totten and Tenet v. Doe. See Totten v. United States, 92
U.S. 105, 107, 23 L.Ed. 605 (1875) (establishing absolute bar to enforcement of
confidential agreements to conduct espionage, on ground that "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"); Tenet v. Doe, 544 U.S. 1, 10-11, 125 S.Ct. 1230, 161 L.Ed.2d
82 (2005) (reaffirming Totten in unanimous decision). Even marshalling the
evidence necessary to make the requisite showings would implicate privileged
state secrets, because El-Masri would need to rely on witnesses whose
identities, and evidence the very existence of which, must remain confidential
in the interest of national security. See Sterling, 416 F,3d at 347 ("[T]he very
methods by which evidence would be gathered in this case are themselves
problematic.").
b.
37
38

Furthermore, if El-Masri were somehow able to make out a prima facie case
despite the unavailability of state secrets, the defendants could not properly
defend themselves without using privileged evidence. The main avenues of
defense available in this matter are to show that El-Masri was not subject to the
treatment that he alleges; that, if he was subject to such treatment, the
defendants were not involved in it; or that, if they were involved, the nature of
their involvement does not give rise to liability. Any of those three showings
would require disclosure of information regarding the means and methods by
which the CIA gathers intelligence. If, for example, the truth is that El-Masri
was detained by the CIA but his description of his treatment is inaccurate, that
fact could be established only by disclosure of the actual circumstances of his
detention, and its proof would require testimony by the personnel involved. Or,
if El-Masri was in fact detained as he describes, but the operation was
conducted by some governmental entity other than the CIA, or another
government entirely, that information would be privileged. Alternatively, if the
CIA detained El-Masri, but did so without Director Tenet's active involvement,

effective proof thereof would require a detailed explanation of how CIA

operations are supervised. Similarly, although an individual CIA officer might
demonstrate his lack of involvement in a given operation by disclosing that he
was actually performing some other function at the time in question,
establishing his alibi would likely require him to reveal privileged information.
39

Moreover, proof of the involvementor lack thereofof particular CIA

officers in a given operation would provide significant information on how the
CIA makes its personnel assignments. Similar concerns would attach to
evidence produced in defense of the corporate defendants and their unnamed
employees. And, like El-Masri's prima facie case, any of the possible defenses
suggested above would require the production of witnesses whose identities are
confidential and evidence the very existence of which is a state secret. We do
not, of course, mean to suggest that any of these hypothetical defenses
represents the true state of affairs in this matter, but they illustrate that virtually
any conceivable response to El-Masri's allegations would disclose privileged
information.

c.
40
41

It is clear from precedent that the "central facts" or "very subject matter" of a
civil proceeding, for purposes of our dismissal analysis, are those facts
necessary to litigate itnot merely to discuss it in general terms. In Bareford v.
General Dynamics Corp., several plaintiffs who had been injured or whose
decedents had died in the 1987 missile attack on the U.S.S. Stark in the Persian
Gulf initiated an action against the manufacturers of the vessel's weapons
system, alleging that the system had been defectively manufactured and
designed. See 973 F.2d 1138, 1140 (5th Cir.1992). Those allegations, like ElMasri's, could be set forth without revealing state secrets; the plaintiffs'
assertion that a Navy weapons system was, defective was not, in itself,
detrimental to national security. The `facts central to the resolution of the
proceeding, however, were whether the weapons system was intended to
destroy the missile that struck the Stark and, if so, why it failed. Those critical
factual questions could not be answered, the Fifth Circuit concluded, without
threatening disclosure of privileged state secrets, and thus dismissal was
appropriate. See id. at 1143-44.

42

Similarly, in Black v. United States, the plaintiff alleged that, after he had
reported suspicious contact with a possible Soviet spy, the CIA, FBI,
Department of Defense, and Department of State had subjected him to a
"campaign of harassment and psychological attacks." 62 F.3d 1115, 1116 (8th
Cir.1995). Black claimed that employees of those agencies had followed him,

subjected him to strange telephone calls, broken into his apartment and
rearranged things, broken into his car, and drugged him with a substance that
produced terrifying hallucinations. See id. at 1116-17. The general subject
matter of those allegations, like that of El-Masri's Complaint, could be
discussed without revealing state secrets. Yet the Eighth Circuit concluded that
dismissal was appropriate because the facts central to the actual litigation of
Black's claimsthe "identity of the alleged wrongdoers, their relationship to
the government, and their contacts with Black"were privileged. Id. at 111819.
43

In Kasza v. Browner, the plaintiffs alleged that the Air Force had contravened
the Resource Conservation and Recovery Act in its storage, treatment, and
disposal of hazardous waste at a classified operating location near Groom Lake,
Nevada. 133 F.3d 1159, 1164 (9th Cir.1998). Their allegations could be
explained without resort to state secrets; the revelation that the Air Force might
have unlawfully handled its hazardous waste was not detrimental to national
security. But because much of the specific information needed to litigate the
plaintiffs' claims was privileged, the Ninth Circuit concluded that the "very
subject matter of [the] action is a state secret," and "agree[d] with the district
court that [the] action must be dismissed." Id. at 1170.

44

Our own recent decision in Sterling involved a CIA officer's claim that he had
been discriminated against because of his race. See 416 F.3d at 341. As in the
decisions of our sister circuits discussed above, Sterling's allegations could be
stated with no detrimental effect on national security; his assertion that the CIA
had engaged in race discrimination compromised no confidential information.
Yet we concluded that the very subject matter of his action, the facts central to
its litigation, consisted of state, secrets, because a judicial resolution of the
matter would have required disclosure of how the CIA makes sensitive
personnel decisions, and would have involved the production of witnesses
whose very participation in a court proceeding would risk exposing privileged
information. See id. at 347-48. We thus affirmed the dismissal of Sterling's
action at the pleading stage. See id. at 348-49.

45

In light of these decisions, we must reject El-Masri's view that the existence of
public reports concerning his alleged rendition (and the CIA's rendition
program in general) should have saved his Complaint from dismissal. Even if
we assume, arguendo, that the state secrets privilege does not apply to the
information that media outlets have published concerning those topics,
dismissal of his Complaint would nonetheless be proper because the public
information does not include the facts that, are central to litigating his action.5
Rather, those central factsthe CIA means and methods that form the subject

matter of El-Masri's claimremain state secrets. Consequently, pursuant to the

standards that El-Masri has acknowledged as controlling, the district court did
not err in dismissing his Complaint at the pleading stage.
2.
46

El-Magri also contends that, instead of dismissing his Complaint, the district
court should have employed some procedure under which state secrets would
have been revealed to him, his counsel, and the court, but withheld from the
public. Specifically, he suggests that the court ought to have received all the
state secrets evidence in camera and under seal, provided his counsel access to
it pursuant to a nondisclosure agreement (after arranging for necessary security
clearances), and then conducted an in camera trial. We need not dwell long on.
El-Masri's proposal in this regard, for it is expressly foreclosed by Reynolds,
the Supreme Court decision that controls this entire field of inquiry. Reynolds
plainly held that when "the occasion for the privilege is appropriate, . . . 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." 346 U.S. at 10, 73 S.Ct. 528. El-Masri's assertion that the district
court erred in not compelling the disclosure of state secrets to him and his
lawyers is thus without merit.

C.
47

In addition to his analysis under the controlling legal principles, El-Masri

presents a sharp attack on what he views as the dire constitutional and policy
consequences of dismissing his Complaint. He maintains that the district court's
ruling, if affirmed, would enable the Executive to unilaterally avoid judicial
scrutiny merely by asserting that state secrets are at stake in a given matter.
More broadly, he questions the very application of the state secrets doctrine in
matters where "egregious executive misconduct" is alleged, contending that, in
such circumstances, the courts' "constitutional duty to review executive action"
should trump the procedural protections traditionally accorded state secrets.
Appellant's Br. 10.

48

Contrary to El-Mash's assertion, the state secrets doctrine does not represent a
surrender of judicial control over access to the courts. As we have explained, it
is the court, not the Executive, that determines whether the state secrets
privilege has been properly invoked. In order to successfully claim the state
secrets privilege, the Executive must satisfy the court that disclosure of the
information sought to be protected would expose matters that, in the interest of
national security, ought to remain secret. Similarly, in order to win dismissal of

an action on state secrets grounds, the Executive must persuade the court that
state secrets are so central to the action that it cannot be fairly litigated without
threatening their disclosure. The state secrets privilege cannot be successfully
interposed, nor can it lead to, dismissal of an action, based merely on the
Executive's assertion that the pertinent standard has been met.
49

In this matter, the reasons for the United States' claim of the state secrets
privilege and its motion to dismiss were explained largely in the Classified
Declaration, which sets forth in detail the nature of the information that the
Executive seeks to protect and explains why its disclosure would be detrimental
to national security. We have reviewed the Classified Declaration, as did the
district court, and the extensive information it contains is crucial to our decision
in this matter. El-Mash's contention that his Complaint was dismissed based on
the Executive's "unilateral assert[ion] of a need for secrecy" is entirely
unfounded. It is no doubt frustrating to El-Masri that many of the specific
reasons for the dismissal of his Complaint are classified. An inherent feature of
the state secrets privilege, however, is that the party against whom it is asserted
will often not be privy to the information that the Executive seeks to protect.
That El-Masri is unfamiliar with the Classified Declaration's explanation for
the privilege claim does not imply, as he would have it, that no such
explanation was required, or that the district court's ruling was simply an
unthinking ratification of a conclusory demand by the executive branch.

50

We also reject El-Masri's view that we are obliged to, jettison procedural
restrictionsincluding the law of privilegethat might impede our ability to
act as a check on the Executive. Indeed, El-Masri's position in that regard
fundamentally misunderstands the nature of our relationship to the executive
branch. El-Mash envisions a judiciary that possesses a roving writ to ferret out
and strike down executive excess. Article III, however, assigns the courts a
more modest role: we simply decide cases and controversies. Thus, when an
executive officer's liability for official action can be established in a properly
conducted judicial proceeding, we will not hesitate to enter judgment
accordingly. But we would be guilty of excess in our own right if we were to
disregard settled legal principles in order to reach the merits of an executive
action that would not otherwise be before usespecially when the challenged
action pertains to military or foreign policy. We decline to follow such a course,
and thus reject El-Mash's invitation to rule that the state secrets doctrine can be
brushed aside on the ground that the President's foreign policy has gotten out of
line.6

D.

51

As we have observed in the past, the successful interposition of the state secrets
privilege imposes a heavy burden on the party against whom the privilege is
asserted. See Sterling, 416 F.3d at 348 ("We recognize that our decision places,
on behalf of the entire country, a burden on Sterling that he alone must boar.").
That. party loses access to evidence that he needs to prosecute his action and, if
privileged state secrets are sufficiently central to the matter, may lose his cause
of action altogether. Moreover, a plaintiff suffers this reversal, not through any
fault of his own, but because his personal interest in pursuing his civil claim is
subordinated to the collective interest in national security. See id. ("[T]here can
be no doubt that, in limited circumstances like these, the fundamental principle
of access to court must bow to the fact that a nation without sound intelligence
is a nation at risk."); Fitzgerald 776 F.2d at 1238 n. 3 ("When the state secrets
privilege is validly asserted, the result is unfairness to individual litigants
through the loss of important evidence or dismissal of a casein order to
protect a greater public value").7 In view of these considerations, we recognize
the gravity of our conclusion that El-Masri must be denied a. judicial forum for
his Complaint, and reiterate our past observations that dismissal on state secrets
grounds is appropriate only in a narrow category of disputes. See Sterling, 416
F.3d at 348; Fitzgerald, 776 F.2d at 1241-42. Nonetheless, we think it plain
that the matter before us falls squarely within that narrow class, and' we are
unable to' find merit in El-Masri's assertion to the contrary.

III.
52

Pursuant to the foregoing, we affirm the Order of the district court. See ElMasri v. Tenet, 437 F.Supp.2d 530 (E.D.Va. 2006).8

53

AFFIRMED.

Notes:
1

The corporate defendants named in El-Masri's Complaint are Premier

Executive Transport Services, Inc., which the Complaint describes as doing
business in Massachusetts; Keeler and Tate Management LLC, described as
doing business in Nevada; and Aero Contractors Limited, described as doing
business in North CarolinaSee Complaint 9-11. The Complaint is found at
J.A. 9-34. (Citations herein to "J.A. ___" refer to the contents of the Joint
Appendix filed by the parties in this appeal.)

Pursuant to 28 U.S.C. 517, "any officer of the Department of Justice, may be

sent by the Attorney General to any State or district in the United States to

attend to the interests of the United States in a suit pending in a court of the
United States."
3

The Watt Declaration is found in the Joint Appendix at J.A. 191-210

El-Masri does not dispute that the procedural requirements for asserting the
state secrets privilege have been satisfied here

By no means do we endorse El-Masri's theory that publicly reported

information concerning his alleged rendition is ineligible for protection under
the state secrets doctrine simply because it has been published in the news
media. We need not address his contention in that regard, however, because his
appeal would fail even' if we were to accept it

A group of former diplomats and State Department officials have submitted a

brief in this matter as amici curiae. The amici emphasize that it is important, as
a matter of foreign policy, to provide a forum for claims of civil and human
rights violations. Even if we were to conclude, however, that protecting
national security is less important than litigating the merits of El-Masri's claim,
we are not at, liberty to abrogate the state secrets doctrine on that basis

It should be unnecessary for us to point out that the Executive's authority to

protect confidential military and intelligence information is much broader in
civil matters than in criminal prosecutions. The Supreme Court explained this
principle inReynolds, observing:
Respondents have cited us to those cases in the criminal field, where it has been
held that the Government can invoke its evidentiary privileges only at the price
of letting the defendant go free. The rationale of the criminal cases is that, since
the Government which prosecutes an accused also has the duty to see that
justice is done, it is unconscionable to allow it to undertake prosecution and
then invoke its governmental privileges to deprive the accused of anything
which might be material to his defense. Such rationale has no application in a
civil forum where the Government is not the moving party, but is a defendant
only on terms to which it has consented..
345 U.S. at 12, 73 S.Ct. 528. El-Masri's reliance on our decision in United
States v. Moussaoui, 382 F.3d 453 (4th Cir.2004), in which we required the
United States to grant a criminal defendant substantial access to enemycombatant witnesses whose very identities were highly classified, is thus
misplaced.

On July 17, 2006, the United States filed a motion for expedited in camera/ex

parte review of the Classified Declaration. By Order dated August 19, 2006, we
defexred consideration of that motion. We now deny the motion as moot