State secrets rulings favor ignorance over knowledge

In the first week of March, the U.S. Supreme Court issued two decisions which expand the "state secrets privilege" and make it harder to expose government misconduct. The state secrets privilege broadly permits the government to prevent disclosure of information that it believes would harm national security interests.

The state secrets privilege was created by the Supreme Court in United States v. Reynolds in 1953. It is not found in any statute or Federal Rule of Civil Procedure or Evidence. Although there certainly are instances in which the government needs to protect secrecy for the sake of national security, all too often it has been used to hide government wrongdoing.

Both of the recent Supreme Court decisions reversed rulings by the 9th U.S. Circuit Court of Appeals that imposed limits on the state secrets doctrine. On March 3, United States v. Zubaydah, 2022 DJDAR 2084, held that the state secrets doctrine applies even as to information that already is public and even if it relates to events that are almost 20 years old.

Abu Zubaydah, who remains a prisoner in Guantanamo, alleges that he was held in Poland in 2002 and 2003 where he was tortured. A congressional report documented that he was subjected to more than 80 waterboarding sessions, hundreds of hours of live burial, and forced rectal feeding and hydration.

Zubaydah has a lawsuit pending in Poland against those who he said were responsible for his torture. He filed an action in federal district court seeking to subpoena two former Central Intelligence Agency contractors. The government invoked the state secrets doctrine, claiming that Zubaydah's discovery request could force former CIA contractors to confirm the location of the detention site and that confirmation would itself significantly harm national security interests.

The 9th rejected the government's argument, explaining that that the site's location had already been publicly disclosed. The torture of Zubaydah and others at the site has been well documented, including in the executive summary of a Senate Select Committee on Intelligence Report and by the European Court of Human Rights' findings. The 9th Circuit said the state secrets privilege did not bar disclosure of information that was no longer secret and which was being sought from private parties.

But the Supreme Court reversed and ordered Zubaydah's case dismissed. The decision was 7-2, with Justice Stephen Breyer writing for the majority. The court said that releasing the information would necessarily tend to confirm (or deny) that the CIA maintained a detention site in Poland. The court accepted the government's claim that such information -- even if already made public through unofficial sources -- could significantly harm national security.

This makes no sense. This is about what the government did almost 20 years ago and it is information that already is public from a variety of sources, including congressional reports. More importantly, if the United States government participated in torture, this should be made public. Justice Neil Gorsuch, in a dissent joined by Justice Sonia Sotomayor, powerfully declared: "There comes a point where we should not be ignorant as judges of what we know to be true as citizens. This case takes us well past that point. Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret -- and today the court acquiesces in that request. Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret."

The next day, March 4, the Court again broadened the state secrets privilege in Federal Bureau of Investigation v. Fazaga, 2022 DJDAR 159. Yassir Fazaga, Ali Malik and Yasser Abdel Rahim are members of Muslim communities in southern California who claim that the FBI illegally surveilled them because of their religion. The plaintiffs sued under the Foreign Intelligence Surveillance Act, which limits electronic surveillance by the government and authorizes civil suits. The 9th Circuit ruled that "Congress intended FISA to displace the state secrets privilege and its dismissal remedy with respect to electronic surveillance." Under well-established legal principles, this makes sense because statutes can override common law privileges.

But the Supreme Court unanimously reversed in an opinion by Justice Samuel Alito. The court explained: "FISA makes no reference to the state secrets privilege. ... The absence of any statutory reference to the state secrets privilege is strong evidence that the availability of the privilege was not altered in any way. Regardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues), the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language."

Both of these cases make it easier for the government to use the state secrets privilege to hide its misconduct. In fact, the United States has consistently been able to use this doctrine to escape being held liable for its torture during the war on terrorism.

For example, in El-Masri v. United States, in 2007, the 4th U.S. Circuit Court of Appeals dismissed a lawsuit by a man who had been brutally tortured because of mistaken identity. Khaled El-Masri sued federal government officials who he claimed were responsible for his being abducted, imprisoned for 23 days in a CIA-operated detention facility in Afghanistan, drugged, and tortured. He was released and dumped on the streets of Albania when it was discovered that it was a case of mistaken identity; he was confused with someone with the same name. Although his torture was widely reported, including in Jane Mayer's book, "The Dark Side," the 4th Circuit said that his case had to be dismissed because of the state secrets privilege.

Similarly, in Mohamed v. Jeppesen Dataplan, Inc., in 2010, the 9th Circuit dismissed a claim against a company that transported individuals to rendition sites where individuals were tortured. One of the plaintiffs described being subjected to "severe physical and psychological torture," including routinely beating him and breaking his bones. He says he was cut with a scalpel all over his body, including on his penis, and "hot stinging liquid" was poured into the open wounds. He was held in Guantanamo for five years and then released, having never been tried or convicted of anything. But the Court of Appeals dismissed the suits by him and others who received similar treatment based on the state secrets doctrine.

Long ago, James Madison wrote, "Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives. ... A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both." Unfortunately, the Supreme Court's two recent decisions strongly favor ignorance over knowledge of our government's misconduct. 