The Kasza court also explained that "[t]he application of the state secrets privilege can have ... three effects." Kasza, 133 F.3d at 1166. First, when the privilege is properly invoked "over particular evidence, the evidence is completely removed from the case." Id. The plaintiff's case, however, may proceed "based on evidence not covered by the privilege." Id. "If ... the plaintiff cannot prove the prima facie elements of her claim with non privileged evidence, then the court may dismiss her claim as it would with any plaintiff who cannot prove her case." Id. Second, summary judgment may be granted, "if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim." Id. Lastly, "notwithstanding the plaintiff's ability to produce non privileged evidence, if the 'very subject matter of the action' is a state secret, then the court should dismiss the plaintiff's action based solely on the invocation of the state secrets privilege." Id.
The Sixth Circuit delivered its definitive opinion regarding the states secrets privilege, in Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004). In that case, the plaintiffs sued the United States and various employees of federal agencies, alleging that the defendants engaged in criminal espionage investigation of the plaintiff, David Tenenbaum, because he was Jewish. Id. at 777. The defendants moved for summary judgment, arguing that they could not defend themselves against the plaintiffs' "claims without disclosing information protected by the state secrets doctrine." Id. The district court granted the defendants' motion and the Sixth Circuit affirmed stating:
We further conclude that Defendants cannot defend their conduct with respect to Tenenbaum without revealing the privileged information. Because the state secrets doctrine thus deprives Defendants of a valid defense to the Tenenbaums' claims, we find that the district court properly dismissed the claims. Tenenbaum, 372 F.3d at 777.
Predictably, the War on Terror of this administration has produced a vast number of cases, [*10]
