The “State Secrets” Privilege Is a Tool of Injustice

The “State Secrets” Privilege Is a Tool of Injustice

The “State Secrets” Privilege Is a Tool of Injustice

Nothing in the Constitution’s text supports a state secrets privilege—in fact, it runs counter to upholding a government by the consent of the governed.


Suppose the United States government is guilty of assassination, torture, kidnapping, or other comparably appalling crimes in the name of national security—do we have the right to know about it? According to twin decisions of the United States Supreme Court issued this month, the answer is more often than not a resounding “No.”

On March 3, in the United States v. Zubayah, the federal government invoked a “state secrets” privilege to block official confirmation that Abu Zubaydah, a Guantánamo Bay detainee, had been held and tortured at a CIA black site in Poland in 2002 and ’03, on the grounds that foreign intelligence agencies around the world would cease cooperation and sharing of intelligence with the United States if its clandestine relationship with Poland were officially confirmed.

A companion decision in FBI v. Fazaga was equally repugnant. The court unanimously suggested that the state secrets privilege was rooted in the Constitution, not common law, and thus shielded from congressional regulation or abolition. The privilege had been brandished in a federal district court to dismiss a suit alleging unconstitutional investigation or surveillance of American Muslims because of their religion. In response, then–Attorney General Eric Holder declared that information necessary for the plaintiffs to proceed—specifically, why a person had been selected for a counterterrorism investigation—fell under the definition of protected state secrets.

Nothing in the Constitution’s text supports a state secrets privilege—in fact, it runs counter to the presumption of transparency that is integral to upholding a government by the consent of the governed. Informed consent requires public knowledge of what the government is doing or has done. Instead, the intellectually shabby and morally unjust decisions in Zubaydah and Fazaga are best understood as outgrowths of empire. They are the result of years of government deceit and evasion of accountability that have consistently called for such protections. The state secrets protection was summoned into being and fortified by the Supreme Court as a weapon of empire to defeat a perceived omnipresent, ruthless enemy.

The maiden appearance of state secrets in the Supreme Court came nearly 90 years after the Constitution was ratified, in Totten v. United States (1875). The case pivoted on a Union man’s confidential contract to spy on the Confederate government during the Civil War. In breach of his promise, the spy sued for an alleged shortfall in compensation, which the court held was barred by the confidential contract.

However, the Totten decision did not endorse government crimes—it was a garden-variety breach-of-contract claim. And anyway, potential government abuses of this kind carried a built-in check: If the government persisted in such nonpayment or underpayment of those involved in confidential contracts, there would soon be no takers.

The next state secrets case surfaced 78 years later in United States v. Reynolds (1953), during a high point of the American empire in the aftermath of World War II. In that case, widows sued the United States under the Federal Tort Claims Act alleging that the deaths of their husbands, civilians on board a B-29 military plane that crashed while testing secret electronic equipment, was due to negligence. The secretary of the Air Force invoked state secrets to prevent discovery of an after-accident report, asserting that such a disclosure would “seriously hamper national security, flying safety, and the development of highly technical and secret military equipment.”

The Reynolds court insisted that “the privilege against revealing military secrets…is well established in the law of evidence,” despite this case being only the second time such protections had made its way to the Supreme Court in over 160 years. “We cannot escape judicial notice that this is a time of vigorous preparation for national defense,” the court asserted, going on to say that, since it was “common knowledge” that air power was integral to the country’s defense systems, and that new developments in electronics have only served to enhance it, it was clear that “these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests.” Accordingly, the secretary’s affidavit was accepted at face value, and the state secrets claim was sustained.

Decades later, the accident report was declassified. While it contained no state secrets, it did provide convincing proof of government negligence. Indeed, the report indicated that the plane should never have been allowed to fly.

The arc of the law bends toward power, not justice, and since Reynolds, the brute force of American empire has only grown: a multitrillion-dollar military-industrial-security complex, 800 military bases abroad, special forces in virtually every country in the world, the expansion of NATO to include such minnows as Montenegro and North Macedonia, and a bloated intelligence community that indiscriminately surveils entire populations. Over time, American empire has replaced the American republic.

As a result, limitless power has flowed to the executive branch. Take the 1954 “Doolittle Report,” prepared for President Dwight D. Eisenhower, which read:

It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the United States is to survive, long-standing American concepts of ‘fair play’ must be reconsidered. We must develop effective espionage and counterespionage services and must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated and more effective means than those used against us. It may become necessary that the American people be made acquainted with, understand, and support this fundamentally repugnant philosophy.

Lies and government lawlessness became the coin of the realm. The governments of Iran and Guatemala were overthrown in 1953 and ’54, respectively. Cuba’s Fidel Castro, among others, was targeted for assassination. Congress was fed lies about a second torpedo attack in the Gulf of Tonkin to ignite the Vietnam War. A cascade of government deceit revealed by the Pentagon Papers followed. And even more recently, the phantom weapons of mass destruction alleged in Iraq, the perjurious denials of indiscriminate warrantless spying on the “not-yet-guilty” by the National Security Agency, and the torture and assassinations of terrorist suspects. “I have Article 2,” President Donald Trump proclaimed on July 23, 2019. “I have the right to do anything I want as president.”

As for Zubayah, foreign intelligence agencies cooperate with the CIA to advance their intelligence missions—not from altruism. The idea that they would turn a cold shoulder to the agency just for confirming a clandestine detention site in Poland is preposterous. Intelligence agencies do not operate on mutual trust but rather mutual suspicion. Intelligence officers, like ambassadors, are honest persons sent abroad to lie for their country; no CIA officer accepts at face value what a foreign intelligence counterpart says, and vice versa. That they lie to each other regularly is no secret.

Yet in both the Zubayah and Fazaga the Supreme Court’s empire psychology indulged this imaginary harm to United States intelligence—in the first by official confirmation of Zubaydah’s detention in Poland, and in the second by the potential disclosure of a covert surveillance program. In fact, the state secrets privilege has impaired a Polish investigation into Zubaydah’s torture at the black site, a crime against mankind. It has allowed for the targeting of American citizens freely practicing their religion. It is, in fact, an instrument of injustice.

In the government’s eyes, invoking the state secrets privilege is meant for our own safety and national security. In reality, and as both decisions demonstrate, the government frequently grants itself the ability to evade accountability, using the state secrets privilege to conceal its crimes.

The Supreme Court has never once rejected a state secrets claim of the president—whether relating to assassinations, torture, kidnapping, or other government crimes of moral turpitude. And it never will, if the empire psychology that legitimizes it—and these recent Supreme Court decisions—endures.

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