Summary
dismissing CIA employee's gender discrimination action against the director of the CIA
Summary of this case from Victor Restis v. Am. Coal. Against Nuclear Iran, Inc.Opinion
Civil Action 00-987-A.
November 27, 2000.
Roy W. Krieger, Paleos Krieger, P.C., Alexandria, VA, for Grace B. Tilden, Plaintiff.
Jeri K. Somers, Richard Parker, U.S. Attorney's Office, Alexandria, VA, for George J. Tenent, Defendants.
ORDER
This matter comes before the Court on Defendant's motion for leave to invoke in camera proceedings. Plaintiff, an employee of the Central Intelligence Agency ("CIA"), has brought suit against Defendant alleging gender discrimination in the workplace.
Plaintiff's name is a pseudonym provided by the Defendant to protect national security during this litigation.
Defendant is presently the Director of Central Intelligence ("DCI") of the United States. As such, he is the head of the CIA and of the United States' intelligence community. As DCI, he is the official custodian of the files and records of the CIA. He is charged under law with protecting intelligence sources and methods from unauthorized disclosure.
Plaintiff's counsel made several discovery requests on the CIA for the production of documents and files. In response to these requests and in anticipation of making a motion to dismiss, Defendant has asserted a formal claim of states secret privilege and a formal claim of statutory privilege of the DCI and the CIA to protect intelligence sources and methods, pursuant to 50 U.S.C. § § 403-3(c)(6), 403g. In support of his claims of privilege, Defendant has filed an unclassified declaration, submitted under penalty of perjury, that he has personally evaluated the document requests and concluded that the information sought by Plaintiff is classified, sensitive information that Defendant, as DCI, is bound by law to protect. In the declaration, he also states that the national security of the United States will be seriously damaged if disclosure is permitted. He argues that if disclosure is made, covert employees of the CIA will be compromised, CIA procedures will be disclosed, the ability to collect additional intelligence in certain areas will be jeopardized, foreign relations will be adversely impacted, and lives could be put in serious risk. Details concerning the exercise of these privileges have been set forth in a classified declaration that is under seal in a secured facility. Defendant's motion, in essence, requests this Court to review the classified declaration in camera.
Plaintiff does not object to the in camera nature of the proposed review but, rather, to its ex parte nature. Plaintiffs counsel states that he has been given a security clearance that would permit him to review the classified affidavit. Plaintiff argues that Defendant's "blanket" exercise of privilege is unwarranted and that lesser remedies could be used that would still adequately protect national security while allowing Plaintiffs case to go forward.
Based on the representations of the DCI in his unclassified declaration, the Court finds sufficient cause to proceed in camera to review the classified declaration not only as to the exercise of privilege in reference to Plaintiffs discovery requests but also in anticipation of Defendant's motion to dismiss which the United States Attorney has represented will require the Court to review the classified declaration.
Plaintiffs concerns about the scope of the privileges asserted in this case are well noted but nonetheless premature. The motion presently before the Court merely asks that the classified declaration be considered by the Court in anticipation of Defendant's motion to dismiss and/or, presumably, a motion to quash. Plaintiffs argument that there exists alternatives to dismissal will be considered if and when the Defendant moves to dismiss on the basis of privilege. At this point in time, however, the Court is merely being asked to review the classified declaration so that the Court can, at a later point, perform a proper analysis of whether disclosure would damage the national security. This is the proper procedure in cases like this. See In re Under Seal, 945 F.2d 1285 (4th Cir. 1991)( in camera affidavit reviewed by both the district court and court of appeals without being disclosed to plaintiffs counsel); Fitzgerald v. Penthouse International. Ltd., 776 F.2d 1236, 1243 n. 9 (4th Cir. 1985)( in camera affidavit reviewed by court of appeals); Farnsworth Cannon. Inc. v. Grimes, 635 F.2d 268 (4th Cir. 1980) (en banc)( in camera affidavit reviewed by court of appeals sitting en banc).
As to Plaintiffs counsel's request to participate in the Court's in camera review, courts have routimely denied attorneys' requests to participate in in camera reviews even when the attorneys have security clearances. See Ellsbern v. Mitchell, 709 F.2d 51, 61 (D.C. Cir. 1983) (noting "well settled" law that requestor's counsel not permitted to participate in in camera examination of documents over which privilege is claimed); Halkin v. Helms, 598 F.2d 1, 7 (D.C. Cir. 1979) (plaintiffs counsel not permitted to review in camera affidavit asserting states secrets privilege). "The rationale for this rule is that our nation's security is too important to be entrusted to the good faith and circumspection of a litigant's lawyer (whose sense of obligation to his client is likely to strain his fidelity to his pledge of secrecy) or to the coercive power of a protective order." Ellsberg, 709 F.2d at 61.
For those reasons it is hereby,
ORDERED that Defendant's motion for leave to invoke in camera proceedings is GRANTED, and Defendant's counsel shall contact chambers to arrange for in camera inspection of the DCI's classified declaration prior to hearing on any motion to dismiss or motion to quash.