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August 20, 2012

The State Secrets Privilege: A Horrendous Creation of the Judiciary

Posted in: Court Decisions,Secrecy,Torture,War on Terrorism,Whistleblowers,WikiLeaks

Supreme Court | Flickr photo by wallyg

The judiciary proved last week, once again, how impotent and subservient to unchecked executive power it is when a federal court judge invoked the state secrets privilege and dismissed most of a suit against Federal Bureau of Investigation (FBI) agents, who infiltrated and spied on mosques in Orange County in California. The ruling essentially gave cover to the FBI, which had lied to the community about engaging in covert operations against the Muslim community.

Judge Cormac Carney of the United States District Court of the Central District of California describes in the decision how the Executive Branch’s counterterrorism efforts have forced the judiciary to balance “its obligation to defer to the Executive in matters of national security with its duty to promote open judicial inquiry.” He writes, “Too much deference would short-circuit constitutional liberties while too much judicial inquiry would risk disclosure of information that would jeopardize national security.” The judge then proceeds to cast the case before him as if the decision was some kind of epic task he had been faced with:

In struggling with this conflict, the Court is reminded of the classic dilemma of Odysseus, who faced the challenge of navigating his ship through a dangerous passage, flanked by a voracious six-headed monster, on the one side, and a deadly whirlpool, on the other. Odysseus opted to pass by the monster and risk a few of his individual sailors, rather than hazard the loss of his entire ship to the sucking whirlpool. Similarly, the proper application of the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security.

Carney references three cases—El-Masri, Sterling and Fitzgerald v. Penthouse International Ltd.—to show there was precedent for sacrificing individuals’ liberties in the name of so-called national security. From Fitzgerald, “When the state secrets privilege is validly asserted, the result is unfairness to individual litigants—through the loss of important evidence or dismissal of a case—in order to protect a greater public value.”

The “greater public value” in Fazaga v. FBI, the case in which Carney ruled, is, as Shahid Buttar of the Bill of Rights Defense Committee (BORDC) told Firedoglake, the ability of the FBI to “stand above the law” and not answer to any authority when they outright lie or make deliberate misrepresentations about what kind of operations they are or are not conducting. Also, it makes it possible for the Executive Branch to enjoy extraordinary immunity from punishment when incredible abuses of power are committed and cases on torture, warrantless wiretapping or spying are brought forward in court.

“Between cases,” Buttar explains, “Rights under the First Amendment, under the Fourth Amendment, Fourteenth Amendment and Eighth Amendment” have all “been written out of the Constitution because judges are letting this artificially judicially created doctrine trump all of the various interests implicated in any of these cases.” [*Here's a write-up Buttar did on the Fazaga decision and its implications.]

Carney’s decision provides opportunity to examine the rise of the state secrets privilege in the United States. It is an examination that could not be more critical because few Americans realize how much power the state is able to wield just by claiming “state secrets” will be put at risk. Few know that only in the last century did government begin to broadly assert this power.

A Privilege Born Out of an Illegitimate Ruling

The “state secrets privilege” has its roots in a 1953 case known as United States v. Reynolds, where the United States government refused to tell victims’ families how their loved ones had died in a military plane crash because they contended “secrets” would be revealed. In recent years, it has become known through declassified Air Force documents that fraud was likely perpetrated by the government in this case. The fraud essentially deprived victims of judgments in court.

As a petition that was filed by victims seeking compensation for being defrauded argues, “The government concealed its fraud for decades, holding the accident reports and witness statements as “classified materials” until the 1990s, even though they contained no secrets and had no conceivable further utility. Indeed, that was the Air Force’s purpose in classifying them—to bury them so deep and so long that no one would find them.”

This privilege based in fraud is what President George W. Bush’s administration invoked more than any other previous president in history when covering up torture and abuse in Guantanamo and CIA “black site” prisons, spying on Americans and seeking to protect various human rights violations from being revealed to the world—violations that exemplified a complete disregard for not only international law but US law. And President Barack Obama has presided over a Justice Department that—despite a public gesture to “institute new policies and procedures” for invoking the privilege—has continued to invoke the privilege in the same corrupt manner it did under Bush.

Denying Justice to Torture Victims

A key case is the Mohamed v. Jeppesen Data Plan case, which the American Civil Liberties Union (ACLU) has summarized as a case involving “five survivors of the CIA’s rendition program.” The Bush administration had argued the case could not be litigated because “state secrets” would be disclosed. A district court agreed. Then, when the decision was appealed in the Ninth Circuit Court of Appeals, the Obama administration argued the “district court was correct to deny the plaintiffs any opportunity to present their case in court.” The Ninth Circuit ruled in favor of the survivors and “vacated the lower court decision.” The Obama administration then requested the court reconsider this decision and pushed for the case to not be litigated at all. The Executive Branch had its way with the court and the ruling was reversed in September 2010. The Supreme Court also refused to hear an appeal in 2011.

To give an example of the barbarism, of which this privilege gave the Executive Branch the ability to prevent accountability for committing, the ACLU profile of Ethiopian native Binyam Mohamed says he was rendered from Pakistan to Morocco on an aircraft, which received flight and logistical support services from Jeppesen Dataplan, Inc. He was handed over to interrogators in Rabat, Morocco, where he was detained and tortured for eighteen months. He was routinely beaten, “sometimes to the point of losing consciousness.” He “suffered multiple broken bones.” His genitals were once “cut 20 to 30 times.” In another instance, “hot stinging liquid was poured into open wounds on his penis as he was being cut.” He was threatened with rape, electrocution and death, forced to listen to loud music for long periods of time and “placed in a room with open sewage for a month.” Mohamed also was “drugged repeatedly.”

The judiciary lent credence to the callous notion that allowing torture victims in courts could possibly endanger the country. Protecting Bush administration officials from being found guilty and ensuring this Executive Branch power to have anyone the government suspects of “terrorism” kidnapped was preserved was more important than allowing survivors of CIA torture to have some semblance of justice.

“Rarely Invoked”

Judges subscribe to this conventional wisdom that the state secrets privilege is “rarely invoked.” Boilerplate language in any decision in favor of the government typically makes this clear. There is no mention of how the judge knows it is “rarely invoked.” It is just accepted like the phony notion that any part of government actually still strives to keep a balance between national security and individual liberty.

Carrie Newton-Lyons, co-chair of the National Security Committee of the American Bar Association Section of International Law and a former operations officer with the Central Intelligence Agency, wrote in an extensive examination of the privilege in 2007:

…Although the privilege is often described as rarely-invoked or little-known, recently the government seemingly has not hesitated to invoke the privilege. Nevertheless, prior to World War II, the government rarely had occasion to exercise the privilege and as a consequence the scope of the privilege remained in doubt. Its scope, however, has expanded due to jurisprudence from the lower federal courts, along with occasions for its assertion. Importantly, several cases in the 1980s have sharpened the  jurisprudence on the privilege although the Supreme Court has not directly addressed the privilege since Reynolds…

The landmark case where government fraudulently invoked “state secrets” was never intended to prevent plaintiffs from bringing entire cases against the government. The judiciary, Lyons wrote,  has “forgotten or are ignoring the parameters set out in Reynolds and its description of the correct manner to review the invocation of the privilege.” Thus, the privilege has become a monster the judiciary created and has nurtured, one that gives the Executive Branch incredible benefit.

Various cases where the privilege has been invoked in the past decades show, specifically, the privilege makes it possible for the government to escape justice over allegations such as: racial discrimination against a CIA agent who initiated proceedings challenging his treatment in the workplace (Sterling v. Tenet), sex discrimination by the CIA in the workplace (Tilden v. Tenet), workplace retaliation at the FBI for whistleblower conduct after a translator uncovered infiltration by foreign agents (Edmonds v. Department of Justice), warrantless eavesdropping by the CIA, State Department and another government agency against a Drug Enforcement Agency agent stationed in Burma (Horn v. Albright), the extraordinary rendition of an individual from the US to Syria (Arar v. Ashcroft), the abduction, beating, drugging and transportation of an individual to a secret CIA prison in Afghanistan (El-Masri v. Tenet), dragnet surveillance by the National Security Agency (Shubert v. Obama, Jewel v. NSA), warrantless surveillance of communications of customers of a private corporation (Hepting v. AT&T), the placement of a US citizen on a kill list (Al-Aulaqi v. Obama) and murder of an American community worker by US-supported Contras in Nicaragua (Linder v. Calero).

Perverting Justice

Were it possible for those who crafted the Constitution to bear witness to the despicable perversion of the rule of law that has occurred as a result of the state secrets privilege, one of the architects, John Marshall, would likely be appalled. Marshall argued when Virginia was ratifying the Constitution that in instances when the state claim power which should not be warranted the judiciary would void such a claim of power. He stated, as Gore Vidal highlighted in his book, Inventing a Nation, “To what quarter will you look for protection from an infringement of the Constitution if you will not give the power to the judiciary? There is another body which can afford such a protection.” The judiciary would be a branch to prevent the country from descending into despotism.

“The founders of our country were explicit in the Federalist Papers about the need for the judiciary to be independent,” Buttar contended. Conferring that executive claims of “higher matters are out-of-bounds just because the Executive does not want” those matters “to be aired” clearly compromises the judiciary. The state secrets privilege is incompatible with judicial independence, Buttar said, and that its expansion should “terrify all of us.”

Let Perpetrators Investigate Injustices They’ve Perpetrated

As if to show that when it comes to tyranny, the judiciary believes it could not happen here, the judiciary has proposed effete workarounds such as encouraging the government to investigate plaintiffs’ own allegations so as not to reveal “state secrets” (as it did in the Jeppesen Data Plan, Inc decision):

…[The] judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II…

To be fair, the government could go ahead and compensate torture victims. It could just go ahead and admit wrongdoing, but expecting the agencies and institutions of the Executive Branch to do this on their own accord emasculates the judiciary significantly. Also, imagine a judiciary in a country perceived by the US government to be less-than-free telling encouraging a ruler and his or her government to determine if there is wrongdoing or not. It would instantly induce cries of that rights of people were likely being violated.

The judiciary in the Jeppesen Data Plan, Inc. case also suggested that Congress could act. It excused its complicity in blocking victims from seeking justice by suggesting, “Congress has the authority to investigate alleged wrongdoing and restrain excesses.” Recall, however, Congress could barely be bothered to fake outrage at the scale of crimes committed by the Bush administration. Efforts to impeach Bush and Vice President Dick Cheney were both condemned or spurned. Rep. Dennis Kucinich, who led the charge, found himself increasingly marginalized as he valiantly fought to stop the further entrenching of lawlessness in society.

A few Congress members have proposed some reforms to the state secrets privilege over the past few years. Representative Jerrold Nadler has said, “The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation.” However, up against the national security state and a Beltway culture that cherishes the idea of boundless protection for secrets (even as individuals leak them for their own gain), legislation “reforming” the state secrets privilege must putter its way out of committee to be discussed on the House floor and leak hysteria makes it difficult for sensible bills on secrecy to gain traction. Thus, it is negligent for the judiciary to not address violations of civil liberties simply because the Executive Branch or Legislative Branch could potentially do something about the violations.


Absent action by the judiciary, the Executive Branch is now able to ensure business as usual is not complicated by those who have respect for civil liberties or the rule of law. Those that have a commitment to transparency see government invoking “state secrets” to prevent the disclosure of information. They see government invoking “state secrets” so courtrooms can be closed to journalists. They see government using the protection of “state secrets” to justify not handing evidence material to the guilt or innocence of an individual in court, like for example in the case of Pfc. Bradley Manning. And the government is willing to experiment with new innovative arguments for criminally investigating and prosecuting people just to ensure people of the world do not doubt that America’s national security secrets are sacrosanct (i.e. the wide investigation by the Justice Department into WikiLeaks).

Coupled with the crackdown on whistleblowers at the behest of the national security state, the Executive Branch is able to have extraordinary impunity. It is the kind of impunity a monarch might take for granted. It provides a kind of shelter from the people that, upon discovery, is too tantalizing for anyone in power to restrain themselves from employing.

A challenge to the National Security Agency’s use of warrantless surveillance under the FISA Amendments Act is expected to go before the Supreme Court in the coming months. Given that the NSA contends in true Orwellian fashion that revealing the number of citizens it is spying on would violate their privacy, the main obstacle to the lawsuit being heard will be how the Supreme Court treats the Executive Branch’s invoking of the state secrets privilege.

It has been well over fifty years since the court issued a ruling on the state secrets privilege. The court is likely to find a way of dismissing or not hearing it on a technicality that allows it to get around determining whether it is proper for the Executive Branch to use this power to coverup the abuse of privacy of American citizens. This is unfortunately because the protections that are to be afforded citizens of the United States have become secondary to what those running this empire view as critical to preserving dominance in the world.

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