The Fifth Circuit Court of Appeals reviewed the dismissal of a lawsuit filed by Lawrence M. Bareford and others against General Dynamics Corporation and other defense contractors, stemming from the 1987 missile attack on the U.S.S. Stark during the Iraqi-Iranian War, which resulted in the deaths of 37 crewmen, including 23 related to the plaintiffs. The plaintiffs alleged that defects in the Phalanx weapons system contributed to the attack and sought damages, claiming fraudulent concealment by the manufacturers. However, the U.S. government intervened, asserting that the claims were espoused by them, raised non-justiciable political questions, and involved state secrets protected under the state secret doctrine. The district court found that the trial would necessitate disclosure of classified information, which could jeopardize national security, leading to the dismissal of the case. The court emphasized that the state secrets privilege allows the government to withhold information when its disclosure would be harmful to national security, a privilege that must be invoked by the head of the relevant government department after personal consideration.
A government department can intervene in litigation to assert privilege, preventing either party from obtaining sensitive information during discovery, which generally results in the exclusion of that privileged evidence from the case. The plaintiff's case can proceed without this information, but may only be dismissed if the remaining evidence is insufficient to establish a prima facie case. Courts may also dismiss a plaintiff's case if the privilege denies the defendant critical information necessary for a valid defense or if the case involves state secrets that could compromise national security.
In this context, the plaintiffs argue they can withstand a motion for summary judgment based on 2,500 pages of publicly available affidavits and documents, including statements from former military personnel and Congressional reports. The Secretary of the Navy does not claim privilege over this evidence. A preliminary issue arises regarding whether the government has properly invoked the state secret doctrine, as the plaintiffs contend that the Secretary did not personally review their documents as required by precedent. However, the Secretary asserts he has considered the necessary evidence types for the case, and his review is deemed sufficient. The plaintiffs' evidence presents a complex situation, similar to the Zuckerbraun case, where the Navy Secretary also claimed that related information was classified and disclosing it would threaten national security.
The Second Circuit upheld the dismissal of Zuckerbraun's claim, emphasizing that the plaintiffs needed to prove the intended function of the Phalanx weapons system, its usage during the Stark incident, and whether any failure was due to the manufacturers' negligence. The court highlighted that resolving these issues requires access to privileged data concerning the system's design, manufacture, performance, and operational protocols, which the plaintiffs could not access. Consequently, the court found no sufficient evidence to establish a prima facie case against the defendants. Unlike Zuckerbraun, the plaintiffs offered extensive documentation, including 2,500 pages of evidence and various reports, but this did not adequately demonstrate the Phalanx system's intended operation in the specific circumstances of the Stark incident. The court reiterated that the plaintiffs failed to show that any unclassified information could support their claims. Additionally, the defendants argued that the state secret privilege would hinder their ability to mount a valid defense, asserting that access to classified information was essential for cross-examining the plaintiffs' witnesses. While some courts have suggested that the presence of privileged information justifies case dismissal, the Second Circuit refrained from addressing the implications of the state secret privilege on defenses, deeming it unnecessary for the resolution of this case.
Even if Bareford established a prima facie case with unprivileged information, the state secret doctrine would bar the plaintiffs' action due to the risk of disclosing important state secrets. Dismissal is warranted when privileged material is central to the case, as illustrated in Fitzgerald v. Penthouse International, where the court dismissed a libel action despite the plaintiff's intent to use only non-privileged information. The Navy invoked state secret privilege, arguing that even non-classified testimony posed a risk of revealing classified information. The court recognized that separation of classified and unclassified information may not be feasible during litigation, leading to potential indirect disclosures. Similar reasoning applied in Farnsworth Cannon, where the court found that the case posed a substantial risk of revealing state secrets, regardless of the plaintiffs' lack of government discovery requests. Courts may restrict access to evidence and questioning that could inadvertently disclose sensitive material, especially concerning military interests, as emphasized in Halkin v. Helms and discussed by Judge Winters in Zuckerbraun.
Plaintiffs intend to call former Navy Captain Brindel and former General Dynamics employees as witnesses, who possess access to sensitive information regarding the operation and defects of the Phalanx defense system. There is a significant risk that privileged information could be inadvertently revealed during cross-examination, as privileged and non-privileged materials are closely intertwined. The government argues that even if information is available from non-secret sources, official acknowledgment by government personnel could undermine national security by lending credibility to unofficial data. Citing previous case law, the government contends that such disclosures can be prejudicial to its interests. Although the plaintiffs argue that dismissing the case is an excessively severe response to the potential security risks, the court concludes that dismissal is warranted when the assertion of privilege prevents access to evidence essential for the plaintiffs' claims. The district court also dismissed the case on grounds of presenting a non-justiciable political question, although this reasoning was not further addressed by the appellate court.
Additionally, Bareford raises two due process concerns regarding the district court's handling of an ex parte, in camera proceeding: the lack of a transcript and insufficient notice given to the plaintiffs prior to the hearing. The government acknowledges that notice was inadequate but argues that this error was harmless since the dismissal did not rely on materials reviewed in camera. The appellate court notes that the absence of a transcript prevents review of the in camera proceedings, but again deems the error harmless. Lastly, the plaintiffs' First Amendment challenge to a court order restricting communication about the litigation is deemed moot. The court affirms the district court's decisions.
