Rethinking the State Secrets Privilege After the War On Terror

In March of this year, the Supreme Court decided to block the testimony sought by Guantánamo detainee Abu Zubaydah. Zubaydah, allegedly a former associate of Osama Bin Laden, claimed that he was subject to unlawful torture at a Central Intelligence Agency (CIA) blacksite located in Poland. His lawyers wanted the testimony of two former CIA contractors, which would provide more information about the conditions of Zubaydah's detainment; however, the Supreme Court ruled that their testimony would divulge classified state secrets, upholding the Biden administration's assertion of the state secrets privilege. [1] CNN Supreme Court analyst Steve Vladeck said that this ruling "will make it much harder, going forward, for victims of government misconduct that occurs in secret to obtain evidence helping to prove that the conduct was unlawful." [2] Indeed, by blocking the disclosure of the testimony, the Supreme Court sustained a dangerous trend in post-9/11 national security law: the Executive's overly broad assertion of the state secrets privilege to dismiss suits that could implicate the U.S. government in misconduct. [3] 

The state secrets privilege, established in Supreme Court case United States v. Reynolds (1953), bars the disclosure of information deemed necessary to keep secret for national security purposes. [4] While the privilege was established for the protection of sensitive information, it has been routinely abused by the Executive in the past twenty years. Since 9/11, state secrets privilege invocations have skyrocketed, even in cases involving accusations of flagrant violations of civil liberties—such as surveillance, indefinite detention, and torture. [5]  Courts have routinely accepted vague justifications from the Executive and dismissed national security suits at the pleading stage due to the government's invocations of the privilege, ultimately authorizing the Executive Branch to obstruct the rule of law. 

But with the Biden administration's withdrawal from the twenty-year war in Afghanistan, and its approval of nearly half of the detainees at Guantánamo Bay for transfer, it seems that the War on Terror may be winding down once and for all. [6] Thus, at this juncture it is especially pertinent to rethink the state secrets privilege and consider solutions to increase government transparency and adherence to the rule of law. A true conclusion to the War on Terror requires a comprehensive reform of the state secrets privilege that protects against its overbroad assertion by the Executive, requires judicial scrutiny of invocations, and prioritizes the protection of civil liberties. Such reform is necessary to ensure that the legal repercussions of the War on Terror do not linger into the future.

The state secrets privilege is rooted in the aforementioned Supreme Court case, United States v. Reynolds (1953). In this landmark case, the widows of three civilians who died in an Air Force plane crash aimed to obtain military reports about the crash to prove that the Air Force had been negligent. The Air Force Secretary submitted a formal claim of privilege to the Court, asserting that because the plane was involved in a mission to test "secret electronic equipment," the documents could not be disclosed "without seriously hampering national security." [7] The Supreme Court majority supported the Air Force's withholding of the documents on the grounds that producing them would divulge military secrets and obstruct national security. The Court's decision was explicitly tied to the Cold War political context: in the majority opinion, Justice Fred M. Vinson wrote, "We cannot escape judicial notice that this is a time of vigorous preparation for national defense… these electronic devices must be kept secret if their full military advantage is to be exploited in the national interests." [8] 

If the Court had ruled for them to be disclosed, it would have found that the documents—which were finally released forty-seven years later—did not actually contain government secrets, but rather ample evidence that the Air Force had, as the widows claimed, been negligent. The plane lacked standard safeguards and its engines were not properly maintained. [9] Except for stating that secret equipment was present (a fact that was already in the press during the case's proceedings), the documents contained no information about the nature or potential use of such equipment. [10] If presented to the Court, the reports would have undermined the Air Force's claims that their disclosure would impede national security. Thus, the very origin of the state secrets privilege reveals its potential for abuse. In Reynolds, the Supreme Court established that the state secrets privilege should be accepted if a court is convinced "that there is a reasonable danger that the compulsion of the evidence will expose" state secrets; yet, the Court also forewarned that the "abandonment of judicial control would lead to intolerable abuses." [11] This warning anticipated the further abuse of the state secrets privilege in the post-9/11 era.

In the law of evidence, a privilege allows a holder of evidence to refrain from disclosing such evidence or bar it from being used in a proceeding. In the United States, there are many circumstances in which litigants can assert privileges. Most, such as attorney-client privilege, physician-patient privilege, and psychotherapist-patient privilege, relate to professional roles. [12] Others include spousal privilege and the privilege against compelled self-incrimination, guaranteed by the Fifth Amendment of the Constitution. In cases unrelated to national security, when there is a disputed privilege claim, documents are submitted to a judge to review in secrecy in a process known as in camera review. In camera review allows a judge to rule on whether the evidence in question is truly privileged, without the evidence being disclosed to the other side. But the state secrets privilege is unique from other privileges because it does not require in camera review. In the Reynolds case, the Supreme Court wanted to avoid "too much judicial inquiry into the assertion of privilege," which it worried would "force disclosure of the thing the privilege was meant to protect." [13] As a result, the majority opinion stated that the Court would "not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case." [14] Herein lies a core procedural issue with the state secrets privilege: the majority opinion in Reynolds has motivated courts to blindly accept any assertion of the state secrets privilege without facilitating an in camera review of the documents in question to judge whether they must stay secret. [15] In more recent cases, the government has maintained that courts should allow for the "utmost deference" to its assertion of the privilege. [16] The lack of procedural guidelines, combined with judicial deference to the executive, have resulted in the hindering of proceedings related to human rights abuses and government misconduct.

El-Masri v. Tenet (2007) is a classic example of post-9/11 state secrets misuse by the Executive. Khaled El-Masri was a German national who was illegally kidnapped by the Macedonian police and handed over to the CIA. He was held by the CIA at a blacksite in Afghanistan, where he was subject to cruel torture and punishment without any charge. Eventually, the CIA admitted that his arrest was a mistake and released him. In 2006, during the pleading stage of El-Masri's case against CIA Director George Tenet, the U.S. District Court for the Eastern District of Virginia dismissed the case after accepting the CIA's assertion of the state secrets privilege. The CIA claimed that any proceedings would jeopardize national security, even though information about El-Masri's treatment and the United States' extraordinary rendition program had already been publicized. [17] The American Civil Liberties Union (ACLU), which led El-Masri's defense, admitted that it might have been appropriate to protect sensitive evidence during the proceedings using in camera reviews, but dismissal at such an early stage was "unjust, unnecessary, and improper." [18]

Similarly, in Al-Shimari v. CACI Premier Technology, Inc. (2020), three Iraqi citizens, who alleged that they were tortured while detained at Abu Ghraib prison, filed suit against CACI Premier Technology, a contractor hired by the U.S. government to provide interrogation personnel. The plaintiffs claimed that while illegally detained, they were subject to isolation, sensory deprivation, sexual assault, and forced nudity. [19] On three separate occasions, the U.S. Department of Defense asserted the state secrets privilege to deny the plaintiffs’ use of CACI Premier documents that detailed detainee interrogation plans. Secretary of Defense Jim Mattis said that the disclosure of this information "could be expected to cause serious damage to the national security of the United States." [20] The Court then accepted these privilege claims and moved the proceedings forward. CACI moved to dismiss the case, arguing that without available evidence, it could not defend itself against the plaintiffs' accusations. In 2019, Judge Brinkema of the Federal District Court for the Eastern District of Virginia denied CACI's motions to dismiss. [21] The Fourth Circuit is currently reviewing the case and a decision is pending. But it is notable that the case is in its fourteenth year, indicating that the state secrets privilege has significantly delayed the plaintiffs' demands for judicial relief.

In a more recent case, Federal Bureau of Investigation v. Fazaga (2022), three Muslim residents of Southern California filed a lawsuit in federal court alleging that the Federal Bureau of Investigation (FBI) used an informant to conduct a covert survillance program for at least fourteen months to gather information at their place of worship, the Islamic Center of Irvine. [22] The plaintiffs accused the FBI of surveillance solely on the basis of their religious identity, a violation of key constitutional and legislative civil rights protections.The U.S. Attorney General invoked the state secrets privilege, claiming that the FBI could not defend itself without relying "heavily" on classified materials related to the FBI's spying operation known as "Operation Flex." [23]  It moved to dismiss all of the plaintiffs' discrimination claims. The District Court upheld the government's invocation and dismissed all but one of the plaintiffs' claims. The U.S. Court of Appeals for the Ninth Circuit then reversed the decision, holding that the District Court should have conducted an in camera review to determine whether the surveillance was unlawful under FISA. It claimed that §1806, a provision in FISA, displaced the state secrets privilege with respect to electronic surveillance. [24] In 2022, the case was brought to the Supreme Court, which overturned the Ninth Circuit's decision and remanded the case. [25] 

These cases reveal the ways that the Executive's assertions of state secrets privilege have created procedural hurdles to avoid liability for illegal, war-based national security policies.  

Areas for Reform

Politicians and advocates have pushed for state secrets reform for decades. [26] In 2009, the Obama administration ordered the Department of Justice to examine new ways to improve the process of asserting the state secrets privilege. But instead of proposing measures for greater accountability through congressional or judicial review, the Administration added layers of intra-executive oversight to the process of asserting the state secrets privilege. [27] By keeping the state secrets privilege process within the Executive Branch, the Obama administration did not increase transparency or redress the flaws in the privilege process. [28] 

Thus, it is time for Congress to take the lead in reforming the state secrets privilege. However, it is difficult to gauge how much Congress really can change the privilege, as the state secrets privilege is not a common law doctrine and has its grounding in separation-of-powers considerations and Article II of the Constitution. [29] But as legal scholar Robert M. Chesney argues, the privilege has a constitutional "core," and a changeable "common-law shell." In other words, despite the privilege's basis in Article II, there is still room for legislative reform. Through legislation, Congress can codify the state secrets process and establish clear standards for judicial review of privilege claims. [30]  

When Congress navigates reform, the key will be to give greater weight to the judiciary as a check on executive power. The most important procedural change should be to require judges to review each piece of evidence that the Executive claims is privileged; in camera reviews must be mandated. A reform bill should also include a provision that prohibits courts from dismissing claims on the basis of state secrets privilege without reviewing all evidence in question. [31] These changes will ensure that courts can make a more accurate assessment of whether disclosure of the evidence in question poses "reasonable risk" to national security. [32] 

 A central challenge in this "reasonable risk" test is the Court's lack of national security expertise. Judges may not have the expertise or background to conclude whether pieces of evidence would threaten national security. Therefore, some legal scholars have suggested that a state secrets reform should allow courts to appoint external experts to scrutinize evidence for national security content and advise the Court on the risks of disclosure. [33] The idea of external experts, however, has raised questions about clearance and neutrality, leading other scholars to support the use of congressional intelligence committees, which would participate in in camera reviews and serve in an advisory capacity. [34] Another potential provision could allow courts to permit proceedings involving state secrets to go forward in an in camera capacity. This would allow plaintiffs to proceed with their cases even if certain evidence is classified, rather than having their suits dismissed at the discovery stage. Judges could transfer their cases into a classified judicial forum, akin to the Foreign Intelligence Surveillance Court, which grants the U.S. government authorizations for surveillance and investigative action for foreign intelligence purposes. [35] 

In 2008, Senators Edward Kennedy and Arlen Specter introduced S. 2533, the State Secrets Protection Act, in response to the Bush administration's assertions of state secrets privilege in cases involving warrantless tapping and unlawful interrogation. The Act aimed to set a standard procedure for assessing state secrets privilege claims, requiring courts to undertake a review of the information in question before making any determinations about the validity of the privilege claim. It also would grant the ability to appeal a district court's decision. [36]  The Bush administration expressed staunch opposition to the bill and it never passed. [37]  However, given the changed political context in 2022, Congress should seize on its window of opportunity and revisit state secrets reform. A constructive reform bill should ensure that courts serve as a bulwark against executive secrecy, by explicitly requiring judicial scrutiny and prioritizing the protection of civil liberties.

Cicero famously said that "in times of war, law falls silent." [38] National security law in the post-9/11 decades exemplified how war-based national security policies can often erode standard safeguards for civil liberties. But these legal repercussions need not continue into the future. If the U.S. legal system is to properly recuperate, it must halt the abuse of the state secrets privilege, which has obstructed government accountability since its very inception. Comprehensive reform will be essential for restoring the rule of law and our government's responsibilities to the American people.   

edited by Amogh Dimri

Sources:

[1] United States v. Zubaydah 595 U.S. ___ (2022). 

[2] Ariane de Vogue, "Supreme Court Blocks Torture Testimony Sought By Terrorism Suspect Held in Guantánamo Bay," CNN (March 3, 2022), https://www.cnn.com/2022/03/03/politics/supreme-court-zubaydah/index.html 

[3] Sudha Setty, "Executive Branch Secrecy," in National Security Secrecy: Comparative Effects on Democracy and the Rule of Law (New York: Cambridge University Press, 2015), 19.

[4] United States v. Reynolds 345 U.S. 1 (1953).

[5] Daniel R. Cassman, "Keep it Secret, Keep it Safe: An Empirical Analysis of the State Secrets Doctrine," 67 Stanford Law Review 1173, 1189 (2015), http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2015/05/67_Stan_L_Rev_1173_Cassman.pdf. 

[6] Carol Rosenburg, "Biden Administration Approves 5 More Guantánamo Releases," New York Times (January 11, 2022), https://www.nytimes.com/2022/01/11/us/politics/guantanamo-releases-approved.html. 

[7] United States v. Reynolds 345 U.S. 1 (1953).

[8] Id.

[9] Federation of American Scientists, "Secrecy News," 8 FAS Project on Government Secrecy (2004). 

[10] Ira Glass, "The Secret Life of Secrets," This American Life (June 19, 2009),   https://www.thisamericanlife.org/383/origin-story-2009/act-two-2 

[11] United States v. Reynolds 345 U.S. 1 (1953).

[12] Peter Sugar and Richard P. Zipser, "Federal Rules of Evidence and the Law of Privileges," 15 Wayne Law Review 1286, 1286 (1968). 

[13] United States v. Reynolds 345 U.S. 1 (1953).

[14] United States v. Reynolds 345 U.S. 1 (1953).

[15] Faaris Akremi, "Does Justice 'Need to Know'? Judging Classified State Secrets in the Face of Executive Obstruction," 70 Stanford Law Review 973, 990 (2018). 

[16] Kasva v. Browner 133 F.3d 1159, 1166 (9th Cir. 1998).

[17] El Masri v. Tenet 479 F.3d 303 (2007). 

[18] El-Masri v. Tenet: Background on the State Secrets Privilege, American Civil Liberties Union (2018), online at https://www.aclu.org/other/el-masri-v-tenet-background-state-secrets-privilege (visited April 22, 2022). 

[19] Al- Shimari, et al. v. CACI, Center for Constitutional Rights (2022), online at https://ccrjustice.org/home/what-we-do/our-cases/al-shimari-v-caci-et-al (visited April 22, 2022).

[20] Def.'s Mot. to Dismiss, 6, Dec. 20, 2018, Order Den. Def's Opposed Mot. to Dismiss, 12, Feb. 15, 2019, 916 F.3rd 1202 (9th Cir. 2019). 

[21] Ruling: Abu Ghraib Torture Lawsuit Headed to Trial, Center for Constitutional Rights (2019), online at  https://ccrjustice.org/home/press-center/press-releases/ruling-abu-ghraib-torture-lawsuit-headed-trial (visited April 22, 2022).

[22] Federal Bureau of Investigation v. Fazaga 916 F.3rd 1202 (9th Circ. 2019). 

[23] Id; Trevor Aaronson, "Spy in Disguise: An FBI Informant's Unlikely Role in Upcoming Supreme Court Case on Surveillance of Muslims," The Intercept (September 21, 2021),  https://theintercept.com/2021/09/12/fbi-informant-surveillance-muslims-supreme-court-911/. 

[24] Federal Bureau of Investigation v. Fazaga 916 F.3rd 1202 (9th Circ. 2019). 

[25] Rohini Kurup, "Supreme Court Rules in FBI v. Fazaga," Lawfare (March 4, 2022), https://www.lawfareblog.com/supreme-court-rules-fbi-v-fazaga#:~:text=In%20a%20unanimous%20decision%20issued,targets%20of%20illegal%20FBI%20surveillance

[26] Setty, National Security Secrecy, 32.

[27] U.S. Department of Justice, Office of Public Affairs, "Attorney General Establishes New State Secrets Policies and Procedures," Department of Justice (September 3, 2009) https://www.justice.gov/opa/pr/attorney-general-establishes-new-state-secrets-policies-and-procedures   

[28] Aidan Warren and Alexander Dirksen, "Augmenting State Secrets: Obama's Information War," 9 Yale Journal of International Affairs 68, 68 (Winter 2014). 

[29] El Masri v. Tenet 479 F.3d 303 (2007). 

[30] Robert M. Chesney, "State Secrets and the Limits of National Security Litigation," 75 George Washington Law Review 1249 (2007).  

[31] Meredith Fuchs, "Judging Secrets: The Role Judges Should Play in Preventing Unnecessary Secrecy," 58 Administrative Law Review 131 (2006). 

[32] Robert  M. Chesney, "Legislative Reform of the State Secrets Privilege," 13 Roger Williams University Law Review 443 (2008). 

[33] Meredith Fuchs and G. Gregg Webb, "Greasing the Wheels of Justice: Independent Experts in National Security Cases," 28 American Bar Association National Security Law Report 1 (2006). 

[34] Robert M. Chesney, "State Secrets and the Limits of National Security Litigation," 1312.  

[35] Id at 1313.

[36] U.S. Congress, Senate, State Secrets Protection Act, S.2533 , 110th Cong., 2nd sess., introduced in Senate January 22, 2008. 

[37] U.S. Office of the Attorney General, Letter to Chairman Patrick J. Leahy, by Mochael B. Mukasey, March 31, 2008, online at https://www.justice.gov/archive/ola/views-letters/110-2/03-31-08-ag-ltr-re-s2533-state-secrets.pdf  (visited April 22, 2022). 

[38] Silent enim leges inter arma, International Conference on Learning (2022), online at https://www.iclr.co.uk/knowledge/glossary/silent-enim-leges-inter-arma/#:~:text=%E2%80%9CIn%20times%20of%20war%2C%20law,Pro%20Milone%2C%2052%20BC (visited April 21, 2022)