USCA Case #14-5004
Document #1570210
Filed: 08/28/2015
5
On remand it is for the district court to determine whether
limited discovery to explore jurisdictional facts is appropriate.
See, e.g., Natural Resources Defense Council v. Pena, 147
F.3d 1012, 1024 (D.C. Cir. 1998). Of course, I recognize
that, in order for additional discovery to be meaningful, one of
the obstacles plaintiffs must surmount is the government’s
unwillingness to make public a secret program. See United
Presbyterian Church in the U.S.A., 738 F.2d at 1382; cf.
ACLU, 493 F.3d at 655 (“In the present case, the plaintiffs
concede that there is no single plaintiff who can show that he
or she has actually been wiretapped. Moreover, due to the
State Secrets Doctrine, the proof needed either to make or
negate such a showing is privileged, and therefore withheld
from discovery or disclosure.”). It is entirely possible that,
even if plaintiffs are granted discovery, the government may
refuse to provide information (if any exists) that would further
plaintiffs’ case. Plaintiffs’ claims may well founder in that
event. But such is the nature of the government’s privileged
control over certain classes of information. Plaintiffs must
realize that secrecy is yet another form of regulation,
prescribing not “what the citizen may do” but instead “what
the citizen may know.” DANIEL P. MOYNIHAN, SECRECY: THE
AMERICAN EXPERIENCE 59 (1999). Regulations of this sort
may frustrate the inquisitive citizen but that does not make
them illegal or illegitimate. Excessive secrecy limits needed
criticism and debate.
Effective secrecy ensures the
perpetuation of our institutions. In any event, our opinions do
not comment on the propriety of whatever privileges the
government may have occasion to assert.
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