                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


NOTRA TRULOCK, III,                    
                Plaintiff-Appellant,
                 v.
WEN HO LEE,
                Defendant-Appellee,              No. 02-1476

                and
UNITED STATES OF AMERICA,
     Intervenor-Defendant-Appellee.
                                       
NOTRA TRULOCK, III,                    
                Plaintiff-Appellant,
                 v.
CHARLES E. WASHINGTON; ROBERT S.
VROOMAN; WILLIAM B. RICHARDSON,                  No. 02-1477
            Defendants-Appellees,
                and
UNITED STATES OF AMERICA,
     Intervenor-Defendant-Appellee.
                                       
          Appeals from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
              Claude M. Hilton, Chief District Judge.
                 (CA-00-1527-A, CA-00-1627-A)

                      Argued: February 28, 2003

                        Decided: June 3, 2003

    Before MICHAEL, TRAXLER, and KING, Circuit Judges.
2                          TRULOCK v. LEE
Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Larry E. Klayman, JUDICIAL WATCH, INC., Washing-
ton, D.C., for Appellant. Freddi Lipstein, Appellate Staff, Civil Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; John Richard Erickson, REED SMITH, L.L.P., Falls Church,
Virginia, for Appellees. ON BRIEF: Michael J. Hurley, Meredith
Cavallo, JUDICIAL WATCH, INC., Washington, D.C., for Appel-
lant. Robert D. McCallum, Jr., Assistant Attorney General, Paul J.
McNulty, United States Attorney, Barbara L. Herwig, Appellate Staff,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee United States. Thomas C. Green,
Mark D. Hopson, Frank R. Volpe, Griffith L. Green, C. Kevin Mar-
shall, SIDLEY, AUSTIN, BROWN & WOOD, L.L.P., Washington,
D.C., for Appellee Lee; Mitchell I. Batt, SULLIVAN, TALBOTT &
BATT, Rockville, Maryland, for Appellee Washington.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   This case arises out of the investigation of Dr. Wen Ho Lee, a U.S.
Department of Energy (DOE) scientist who was accused of mishan-
dling sensitive nuclear weapons documents. Plaintiff Notra Trulock,
III, formerly an official with the DOE, brought this diversity suit
against Lee and two other federal officials, Robert Vrooman and
Charles Washington. He claims that all three defamed him with state-
ments alleging that his part in the investigation of Lee was motivated
by racial bias. The district court dismissed Trulock’s claims because
the state secrets privilege protects so much relevant information that
                            TRULOCK v. LEE                             3
the litigation cannot go forward. Trulock appeals the dismissal, and
we affirm.

                                   I.

   Trulock was the head of the Office of Energy Intelligence (OEI),
the intelligence and counterintelligence arm of DOE, from 1994 to
1998. Lee, a scientist at Los Alamos National Laboratory (LANL), is
a U.S. citizen who was born in Taiwan. Defendant Robert Vrooman
was a counterintelligence officer at LANL from 1988 to 1998. Defen-
dant Charles Washington was acting director of the Counterintelli-
gence Division of DOE from 1995 to 1996.

   In 1995 two LANL scientists approached Trulock with their con-
cerns that the People’s Republic of China (PRC) was receiving infor-
mation about the U.S. nuclear weapons program, in particular about
a warhead called W-88. Trulock set in motion an investigation. The
first substantive step in the investigation was to form a group of scien-
tists and intelligence analysts, known as the Kindred Spirit Analytical
Group (KSAG), who would evaluate the PRC weapons program and
attempt to determine if the U.S. program had been compromised.
Among the information they reviewed was what is called the "walk-
in document," a document provided to the CIA by a person who had
no previous contact with the intelligence community. It contained
information that helped lead KSAG to the conclusion that the U.S.
nuclear weapons program had been compromised.

   In response to the KSAG’s conclusion, an Administrative Inquiry
(AI) was launched by DOE. An AI begins with a "predicate," which
is the collection of information that forms the basis of an investiga-
tion. The predicate for the AI here was not written down until the
investigation’s final report, but it was developed as Trulock’s office
and others at DOE briefed FBI officials at the beginning of the
inquiry. The AI sought to identify people within DOE who met three
objective criteria: those who (1) had access to W-88 classified infor-
mation, (2) had traveled to the PRC or had contact with visitors from
the PRC, and (3) had indications of previous security concerns. On
May 28, 1996, the final report of the AI was sent to the FBI. The
report identified thirty-two people, including Lee, who met the
criteria. Within days the FBI opened a full investigation of Lee. Over
4                           TRULOCK v. LEE
three years later, on December 10, 1999, Lee was indicted in the Dis-
trict of New Mexico on fifty-nine counts of mishandling classified
information. Starting soon after the indictment, Lee, his lawyers,
Vrooman, and Washington all made statements to the press and in
court documents, charging that the investigation generally and
Trulock in particular unfairly or improperly focused on Lee because
of his Chinese ethnicity. Lee pled guilty to one count of mishandling
classified information in September 2000.

   In response to public controversy over the case against Lee, the
Department of Justice formed a team in May 1999 to look into the
conduct of the investigation that culminated in Lee’s indictment. The
team’s findings were summarized in a 2000 report known as the
Attorney General’s Review Team (AGRT) Report. The report found
that Lee was a proper subject for further investigation. However, the
report questioned the predicate for the AI, which in part dictated the
three criteria. The report found that OEI (Trulock’s office) misrepre-
sented the KSAG conclusions while preparing the predicate for the
AI. OEI, according to the report, substituted its own assessment of the
situation for the KSAG’s. The AI’s predicate was thus flawed from
the start, according to the AGRT Report. This flaw carried over into
the final report of the AI, which became the basis for the FBI’s inves-
tigation of Lee. The public version of the AGRT Report is so heavily
redacted that it is impossible to understand the substance of the devia-
tion between the KSAG conclusion and the AI predicate. Overall, the
AGRT found "no evidence of racial bias," but it goes on to say that
"[t]he lack of a methodical and thorough investigation into the com-
promise of classified information creates a vacuum that invites such
allegations."

   Trulock sued Lee in the Eastern District of Virginia in September
2000 and Vrooman and Washington in the same court in October. The
cases were consolidated. In May 2001 the government (without
becoming a party) filed a statement of interest and sought a protective
order against discovery of classified documents. The district court
ordered the government to release part of the AGRT Report. Early in
2002 the government moved for another protective order, this time
invoking the state secrets privilege and several statutory protections
as well. A magistrate judge granted the motion, which was supported
                            TRULOCK v. LEE                            5
in part by an ex parte affidavit from CIA Director George Tenet. The
protective order covered the following:

    1. Intelligence sources and methods;

    2. The CIA "walk-in" document;

    3. CIA and other U.S. intelligence analyses regarding the
    capabilities and developmental status of the Chinese nuclear
    weapons program;

    4. Information that would identify or reveal CIA Employ-
    ees, Covert Installations, Operational Tradecraft, and Clan-
    destine Sources and subsources. . . .

    [5.] Restricted Data [under the Atomic Energy Act, 42
    U.S.C. § 2011 et seq.] bearing on why and how the DOE AI
    was conducted including (a) information indicating if a
    compromise occurred and (b) information on exactly what
    compromise may have occurred.

   The United States then intervened as a defendant and moved to dis-
miss or, in the alternative, for summary judgment, on the ground that
the case could not be litigated without the privileged evidence. Lee
and Vrooman filed their own motions for summary judgment, and
Washington moved to dismiss. In March 2002 the district court rati-
fied the magistrate judge’s ruling on the protective order and dis-
missed the cases because the information shielded by the protective
order is "central to the case." Trulock now appeals from that order,
claiming that dismissal was improper on the merits and that the dis-
trict court should have devised further procedures to test the relevance
of the privileged information before dismissing the case.

                                  II.

  The district court’s decision to dismiss the consolidated cases
because of the effects of the state secrets privilege presents a legal
question that we review de novo. See ALS Scan, Inc. v. Digital Servs.
Consultants, Inc., 293 F.3d 707, 710 (4th Cir. 2002). We review for
6                           TRULOCK v. LEE
abuse of discretion the district court’s choice of procedures to deter-
mine whether the privilege applies. See Sims v. ANS Freight Sys.,
Inc., 77 F.3d 846, 849 (5th Cir. 1996); see also Pierce v. Underwood,
487 U.S. 552, 558 n.1 (1988).

                                   A.

   Under the common law state secrets privilege, the government may
prevent disclosure of information in a lawsuit if the court is satisfied
"from all the circumstances of the case, that there is a reasonable dan-
ger that compulsion of the evidence will expose military matters
which, in the interest of national security, should not be divulged."
United States v. Reynolds, 345 U.S. 1, 10 (1953). The privilege is
absolute, "render[ing] the information unavailable." In re Under Seal,
945 F.2d 1285, 1287 n.2 (4th Cir. 1991). Trulock does not challenge
the government’s invocation of the privilege or the protective order
implementing the privilege. He argues instead that the district court
should have allowed the case to go forward without the privileged
information.

   Once the government properly invokes the state secrets privilege,
there are three circumstances when the case may not continue. First,
if state secrets are critical to the resolution of core factual questions
in the case, it should be dismissed. See Totten v. United States, 92
U.S. (2 Otto) 105, 107 (1875); D.T.M. Research, L.L.C. v. AT&T
Corp., 245 F.3d 327, 334 (4th Cir. 2001); Fitzgerald v. Penthouse
Int’l, Inc., 776 F.2d 1236, 1241-42 (4th Cir. 1985). Second, a case
should be dismissed if the plaintiff’s ability to prove his case neces-
sarily depends on or threatens the disclosure of privileged informa-
tion. See Farnsworth Cannon v. Grimes, 635 F.2d 268, 281 (4th Cir.
1980) (per curiam) (en banc). Third, summary judgment should be
granted to the defendant if the invocation of the privilege deprives
him of a valid defense. E.g., Kasza v. Browner, 133 F.3d 1159, 1166
(9th Cir. 1998); In re United States, 872 F.2d 472, 476 (D.C. Cir.
1989).

  This case fits into the first category. Although none of the parties
has laid out the elements of a defamation claim or the applicable
defenses or argued which state’s substantive law would apply, they
seem to agree that Trulock must prove that the allegedly defamatory
                            TRULOCK v. LEE                             7
statements are false and that the defendants may defeat his claim by
proving them true. Trulock must also prove that the defendants made
their statements with actual malice, that is, with knowledge of their
falsity or with reckless disregard for the truth. These basic questions
about truth, falsity, and malice cannot be answered without the privi-
leged information.

   Trulock essentially maintains that the privilege does not prevent
the case from going forward because the defendants cannot make out
a defense or disprove his case. He largely rests on the fact that the AI
applied objective criteria, which the defendants knew Lee met. Lee’s
identification could not be the product of bias, he says, and the defen-
dants knew it. None of the allegedly defamatory statements, however,
focuses solely on the conduct of the AI; instead, they charge that the
whole investigation was driven by bias.

   Although the AI did apply objective criteria, the defendants main-
tain (as did the AGRT Report) that the criteria were based upon a
flawed predicate. That is, something changed between the KSAG’s
conclusions, which identified the potential compromise at Los Ala-
mos, and the AI’s predicate, which formed the foundation for the
objective criteria. As a result of the protective order, it is impossible
to know the substance of this deviation. Yet understanding the alleged
flaw in the AI’s predicate is indispensible to determining the truth or
falsity of the allegedly defamatory statements. Understanding how the
KSAG conclusions were dealt with in the predicate might show a
factfinder that no bias infected the investigation, or it might show that
Trulock was biased and his focus on Lee’s ethnicity led him to mis-
state the predicate in a way that prompted the formulation of criteria
bound to select Lee or other ethnic Chinese scientists. Alternately, it
might show that the deviation is not clear evidence of bias or its
absence, but is ambiguous enough that the defendants could have
made their statements without actual malice. In any case, there is no
way for a factfinder to determine whether the investigation as a whole
was guided by any bias on Trulock’s part without looking at the
KSAG conclusions and the AI predicate.

   "[T]he very subject of this litigation" — the true motivation behind
Trulock’s conduct of the investigation, from KSAG to AI — "is itself
a state secret." Fitzgerald, 776 F.2d at 1243. The parties would need
8                            TRULOCK v. LEE
to essentially reconstruct the AGRT Report, which is largely based on
privileged information. The KSAG conclusions, for example, are cov-
ered by the unchallenged protective order because they include infor-
mation about the compromise of nuclear technology and analysis of
the PRC weapons program. A look at KSAG’s work would also
implicate the "walk-in document," also covered by the protective
order. "[T]here was simply no way this particular case could be tried
without compromising sensitive military secrets. . . ." Id. The truth or
falsity of the defendants’ statements, and the defendants’ knowledge
of their truth or falsity, cannot be proved without the privileged infor-
mation.

   Trulock also argues that the AGRT Report’s conclusion that Lee
was not the victim of racial profiling similarly forecloses the defen-
dants’ chances of showing the truth of their allegedly defamatory
statements. He is again arguing that the assertion of the privilege does
not prevent the defendants from making their case because they have
no case to make. We disagree. The AGRT Report represents the find-
ings and conclusions of one factfinder, the team that issued the AGRT
Report. It is not binding on other factfinders and cannot take the place
of a jury’s findings. It would be impossible for a jury to make the nec-
essary findings with the protective order in place.

    Trulock has alleged serious damage to his reputation, and we do
not take that lightly. But in the face of the government’s unchallenged
assertion of the state secrets privilege, we see no middle ground
between guarding national security and providing Trulock a forum to
litigate his case. In this instance, the public interest in national secur-
ity must take precedence over allowing Trulock’s case to proceed.
The district court did not err in its decision to dismiss.

                                    B.

   The district court did not examine the privileged documents or hear
any testimony about the privileged information. In determining that
state secrets lay at the core of the case, the court relied upon affidavits
describing the nature of the privileged information, including one
from CIA Director Tenet. Trulock argues that regardless of its ulti-
mate decision, the district court should not have dismissed the case
without more extensive proceedings, such as an in camera hearing or
                            TRULOCK v. LEE                             9
inspection of documents. He relies upon our admonition in Fitzgerald
that a case should be dismissed "only when no amount of effort and
care on the part of the court and the parties will safeguard privileged
material," 776 F.2d at 1244, to argue that the district court should
have employed additional procedures to assess the relevance of the
privileged information and to decide whether the case could go for-
ward without it.

   Fitzgerald called for "effort and care" in devising trial procedures
to allow non-privileged evidence to be introduced without disclosing
state secrets; it does not impose any new pre-trial procedures for
determining whether dismissal is warranted. We recognize, of course,
that there may be a case where an in camera hearing or other special
procedure is necessary to properly determine whether the invocation
of the state secrets privilege makes it impossible to go forward. This
is not such a case. The subject matter of the privileged information
and of the lawsuit are the same; knowing the particular contents of
specific documents would not have assisted the court’s decision. Once
the protective order was in place, the case could not go forward. The
district court did not abuse its discretion in refusing to engage in fur-
ther proceedings on the question of the relevance of the state secrets
shielded by the protective order.

                                  III.

   The district court did not err in dismissing Trulock’s case, nor did
it abuse its discretion in refusing to engage in further proceedings
before deciding to dismiss. The order of the district court is therefore
affirmed.

                                                            AFFIRMED
