Supreme Court entrenches ‘state secrets’ privilege, dealing a blow to accountability
Parker Higgins
March 8, 2022
The Supreme Court upheld and potentially expanded its pernicious “state secrets” privilege in two opinions late last week relating to expansive government surveillance and anti-terrorism programs.
In United States v. Zubaydah, a divided court ruled that the government did not have to disclose information about its torture program at CIA “black sites” to a plaintiff who is currently detained in Guantánamo Bay. In United States v. Fazaga, the court issued a unanimous opinion ruling that a case against the FBI for unlawful surveillance of mosques should not proceed because it could raise national security concerns.
The state secrets privilege, invented in its modern form by the Supreme Court in the 1950s in a case in which it was later shown the government lied, essentially provides a shield to the federal government from accountability in civil courts for any activity it considers “classified.” As EFF has explained, the government often uses the state secrets privilege to argue that even if allegations of law breaking or constitutional violations are true, they are exempt from judicial review.
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The issues raised in these particular cases are among the most significant possible constitutional concerns. Secret torture programs and religious discrimination through illegal surveillance are obviously matters of major importance. It’s crucial that they are subject to public scrutiny and examination, and that any misconduct meets appropriate accountability.
In these two decisions, the Supreme Court has effectively eliminated the possibility of that kind of accountability. A dissent by Justice Neil Gorsuch and joined by Justice Sonia Sotomayor in the Zubaydah case lays out the problem eloquently:
In the end, only one argument for dismissing this case at its outset begins to make sense. It has nothing to do with speculation that government agents might accidentally blurt out the word “Poland.” It has nothing to do with the fiction that Zubaydah is free to testify about his experiences as he wishes. It has nothing to do with fears about courts being unable to apply familiar tools to disaggregate discovery regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.
Justice Gorsuch describes the Supreme Court searching for truth and being frustrated by the government’s shame. The same dynamic, of course, is apparent when the government goes after whistleblowers who speak to the press, or even the publishers who release that critical information, with threats, condemnations, or even prosecution.
Sometimes those threats are petty, like the governor of Missouri promising prosecution for “hacking” against a journalist who reported on a security issue with the state’s handling of certain personal information. The state was embarrassed, and instead of owning that mistake, an official went after the proximate cause: reporting.
In other cases, the government pursues these grievances to extreme ends. Whistleblowers like Chelsea Manning and Reality Winner serve lengthy prison sentences, and Edward Snowden lives in exile facing Espionage Act charges after embarrassing the state.
The state secrets privilege is a specific legal argument that prevents a certain kind of accountability — namely, consideration by a court of law. The impulse that motivates its misuse, though, is much more general. It’s disappointing to see this abuse of power being upheld at the highest levels.