6th Circuit: Collateral Estoppel Bars Relitigation of State Secrets Dismissal of Civil Rights Claim

In Tenenbaum v. U.S. Department of Defense, (6th Cir., Dec. 20, 2010), the U.S. 6th Circuit Court of Appeals held that the doctrine of collateral estoppel prevents plaintiffs from relitigating the application of the "state secrets" doctrine to their claim against the federal government. Plaintiff David Tenenbaum, a civilian employee of the Army, was subjected to an intensive investigation in 1997 over allegations that he had revealed classified information to the Israeli government. In 1998, Tenenbaum and his wife sued for violation of their civil rights, including an allegation that Tenenbaum's religion was a factor in the government's deciding to investigate him. That suit was dismissed when the government asserted that it could not mount a defense without disclosing state secrets. Following submission by DOD Inspector General of a report on the matter to the U.S. Senate Armed Services Committee in 2008, plaintiffs filed the present lawsuit alleging that defendants knowingly lied when they asserted the state secrets privilege in 1998. The Court held, however, that the question of whether the state secrets privilege had been properly invoked had already been litigated in 1998. Yesterday's Chicago Tribune reports on the decision. (See prior related posting.)