Kunstler v. Central Intelligence Agency

Background

The Government asked for additional time to respond to the amended complaint and for the parties to submit a report under Federal Rule of Civil Procedure 26(f). The Government stated that the CIA had concluded that answering the remaining allegations—by admitting, denying, or stating that it lacked information—could itself reveal classified information. The CIA therefore intended to seek authorization to defend an assertion of the state-secrets privilege.

The remaining claim alleged that, at the CIA’s request, Spanish defendants illegally downloaded the contents of the plaintiffs’ electronic devices when the plaintiffs visited Julian Assange at the Ecuadorean Embassy in London and transmitted the materials to the CIA. The Government said that investigating whether those allegations were true would require disclosure of information about the CIA’s intelligence-gathering activities.

The requested extension

The Government explained that the CIA was preparing a declaration for the CIA Director and consulting with offices within the CIA, the Office of the Director of National Intelligence, and the Department of Justice. It described Department of Justice procedures requiring review and approval by multiple officials, ultimately including personal authorization by the Attorney General, before the Government could defend an assertion of the state-secrets privilege.

The Government requested that the deadline to respond to the complaint be moved to April 15, 2024, and that the Rule 26(f) report deadline be moved to April 25, 2024. It stated that, if authorization were granted, the CIA would file a motion to dismiss based on the privilege rather than answer the complaint. The Government also said that discovery could not proceed until such a motion was resolved.

The plaintiffs opposed the request. Their stated position was that the Government had already received the relief it previously requested and that the deadline to answer was imminent. They also argued that an answer consisting of admissions, denials, or statements of insufficient information could not reveal a state secret.

Ruling

The application was granted. The order extended the Government’s response deadline to April 15, 2024, and the Rule 26(f) report deadline to April 25, 2024, as requested. Judge John G. Koeltl did not decide whether the state-secrets privilege applied, whether the Attorney General would authorize the assertion, or whether the case should ultimately be dismissed.