Reply #150: From the link to Judge Taylor’s judgment and order for permanent injunction

[Emit]

II. State Secrets Privilege
Defendants argue that the state secrets privilege bars Plaintiffs’ claims because Plaintiffs
cannot establish standing or a prima facie case for any of their claims without the use of state
secrets. Further, Defendants argue that they cannot defend this case without revealing state secrets.
For the reasons articulated below, the court rejects Defendants’ argument with respect to Plaintiffs’
claims challenging the TSP. The court, however, agrees with Defendants with respect to Plaintiffs’
data- mining claim and grants Defendants’ motion for summary judgment on that claim.

~snip~
The Court sustained the Government’s claim of privilege, finding the plaintiffs’ “necessity” for the
privileged information was “greatly minimized” by the fact that the plaintiffs had an available
alternative. Reynolds, 345 U.S. at 11. Moreover, the Court found that there was nothing to suggest
that the privileged information had a “causal connection with the accident” and that the plaintiffs
could “adduce the essential facts as to causation without resort to material touching upon military
secrets.” Id.

~snip~

The second line of cases deals with the exclusion of evidence because of the state secrets
privilege. In United States v. Reynolds, 345 U.S. 1 (1953), the plaintiffs were the widows of three
civilians who died in the crash of a B-29 aircraft. Id. at 3-4. The plaintiffs brought suit under the
Tort Claims Act and sought the production of the Air Force’s official accident investigation report
and the statements of the three surviving crew members. Id. The Government asserted the states
secret privilege to resist the discovery of this information, because the aircraft in question and those
aboard were engaged in a highly secret mission of the Air Force.

~snip~

Plaintiffs, however, maintain that this information is not relevant to the resolution of their
claims, since their claims regarding the TSP are based solely on what Defendants have publicly
admitted. Indeed, although the instant case appears factually similar to Halkin, in that they both
involve plaintiffs challenging the legality of warrantless wiretapping, a key distinction can be drawn.

Unlike Halkin or any of the cases in the Reynolds progeny, Plaintiffs here are not seeking any
additional discovery to establish their claims challenging the TSP.6

http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf