Hopes that the current Supreme Court might at long last place even the mildest of limits on the federal government’s ability to hide behind a broad, virtually impenetrable “national security” shield were dashed last week when, in a pair of decisions, the High Court refused to make even a dent in the so-called “state secrets privilege” behind which Uncle Sam has hidden for nearly seven decades.
The two decisions – one unanimous and the other with one of the more “conservative” justices (Neil Gorsuch) joining with one of the most “liberal” (Sonia Sotomayor) in dissent – leave intact a legal maneuver that since 1953 has permitted Uncle Sam to block any legal action that might reveal evidence the government does not want to be made public, even if for no reason other than to avoid embarrassment or if the information sought to be disclosed has already been made public.
The so-called “state secrets privilege” (or “doctrine”) is not enshrined in any law, but is simply a judge-made rule that stops cold in its tracks any lawsuit or subsequent legal action brought against the federal government alleging official wrongdoing (including violation of an individual’s constitutionally guaranteed rights). All that government lawyers need do in order to invoke its protection is to claim that disclosure of material sought by private parties would harm “national security,” and ask the federal court hearing the matter to dismiss the proceedings out-of-hand. They can do this without having to disclose precisely what the actual “harm” to national security might be.
I was among those who had hoped last December that the Supreme Court would use the opportunity of being presented with a case in which a federal law (the 1978 Foreign Intelligence Surveillance Act, or “FISA”) appeared to actually require disclosure of evidence of unlawful electronic surveillance and place at least some limit on how extensively the state secrets privilege applied.
Unfortunately last week, not a single Supreme Court justice was willing to lend their name to such an opinion, with all nine opting instead to continue extending carte blanche to the FBI (the agency that had conducted surveillance of the individuals in alleged violation of FISA more than a decade ago) and other federal entities, to carry out surreptitious electronic surveillance regardless of whether the surveillance was alleged to have been unlawful.
The Court’s decision last week in the FISA case comports with arguments made in support of the state secrets privilege by Republican and Democrat Attorneys General dating back to the Truman Administration. The doctrine was first asserted as a way to prevent survivor spouses of three civilian contract personnel killed in the crash of a government plane testing classified electronics from being able to pursue a wrongful death lawsuit. Decades later, when the information thus protected was declassified, it was confirmed that the sole reason the government had fought disclosure was to avoid the exposure of embarrassing information and to avoid having to pay survivors’ benefits.
The other Supreme Court opinion last week involving the state secrets privilege regarded a site in Poland that had been used by the CIA in 2002 and 2003 to torture an individual thought to be a high-level al-Qaida operative with information about post-911 attacks (it was later determined he did not possess such information).
Even though the fact that the site in Poland had already been identified publicly in unrelated legal proceedings in Europe, six members of the Supreme Court joined with retiring Justice Stephen Breyer last week to extend the state secrets privilege to shield our government from having to admit a fact already in the public domain.
Taken together, these two Supreme Court opinions clearly show that even today, more than two decades after 9/11, federal judges, including those on the U.S. Supreme Court, remain afraid of being accused of endangering the “national security,” even if all they might be called on to do would be to hold the federal government accountable for engaging in actions that violate American law or the Bill of Rights.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.