The State Secrets Privilege: The United States Government’s Power to End Cases

In recent years, tension has mounted between the priorities of the United States government and the will of its citizens. This tension manifests in a myriad of ways, but a recent series of Supreme Court cases have centered it on the privilege of state secrets. The state secret privilege is a law that allows anything that may be a threat to national security to be deemed “privileged information.”¹ The U.S. government, therefore, does not have to share this information with the public. Secrecy of government operations has long been heavily scrutinized by the general public, and the judicial system has historically set precedents that further solidify the sense of distrust between the U.S. government and its citizens. In United States v. Reynolds (1953), the Supreme Court set the landmark precedent that government operations involving the military are privileged against disclosure.² The Supreme Court reinforced this relationship with United States v. Zubaydah (2021), a case that effectively enabled the U.S. government to entirely conceal its military activity in domestic operations that concern civilians.

The United States government claims that it keeps its military operations secret in order to maintain national security and the Supreme Court typically rules in its favor. Surprisingly, in the Zubaydah case, the lower courts initially cut against this well-established grain. Despite the precedent set in Reynolds, the lower courts found that this case involved publicly known information, so the state’s secret privilege did not apply.³ The Supreme Court, however, reversed this judgment and remanded the case, holding that the state secret privilege does apply due to the risk of potentially hindering relationships between the United States government and foreign intelligence.⁴ With this decision, the Supreme Court further cemented its support for the state secrets privilege. If the Supreme Court truly wished to follow the spirit of checks and balances within the three branches of government, it would have limited the power established in Reynolds that allows the U.S. government to terminate cases relating to national security. While there are potential risks to national security related to Zubaydah, the Supreme Court should have established limits on how far the government can intervene in the judicial process through the state secrets privilege.

The CIA operates without public oversight, meaning that it can operate internationally without the American public ever learning about its tactics or actions. According to the intervention of the United States government in cases related to national security, this practice has multiple powerful implications. Primarily, the ability of the CIA to operate outside of public knowledge through the state secrets privilege enables it to carry out operations in opposition to public interest. As a result, the CIA is not held accountable to any external power. The nearly unlimited freedom provided to the CIA enables the institution to remain unchecked and unaccountable to the American public. Through the initial discovery process in Zubaydah wherein both sides of the case exchanged information, the District Court found that Abu Zubaydah was put into a detention facility in Poland rather than in the United States. Zubaydah, a senior al-Qaeda lieutenant with potential knowledge of future terrorist attacks, filed a complaint stating that he was mistreated by operatives at the Polish facility.⁵ The U.S. government blocked evidence of his mistreatment on the grounds that they must protect national security by denying the existence of a detention facility in Poland. Zubaydah did not request that the location of his detention be disclosed; rather, he simply wanted an investigation of his mistreatment in the facility.⁶ Since the state secret privilege blocks the acknowledgment that this facility exists in the first place, it effectively blocks any further discovery into occurrences of mistreatment as well. In this case, the letter of the law established in Reynolds does not necessarily align with the spirit of the law. Reynolds effectively does allow the U.S. government to block the case as confirmation of the existence of the Polish base is a matter of national security; however, the law is being stretched to wholly deny Zubaydah’s request for an investigation into his mistreatment.⁷ The United States government could have requested a classification of secret military bases locations while still allowing a continuance of discovery into the advanced interrogation tactics that occurred there, but instead, the government stretched its powers to shut the case down entirely. The Zubaydah ruling sets the precedent that the U.S. government can claim privileged information on any minor point in the case and consequently subdue the entire legal process.

In the case of Zubaydah, the United States government did not allow the judicial process to function uninterrupted but rather exerted pressure on a branch that is meant to check executive power. Until the government intervened, Zubaydah went through an initial district court hearing that would have allowed for a continuation of the case. The District Court found that the government should not be able to invoke the state secrets privilege as the knowledge of the detention site in Poland would not necessarily threaten national security. The District Court, however, did rule that discovery could not continue without the risk of causing a national security issue. The Ninth Circuit subsequently agreed, but the majority panel found that the case should not have been dismissed due to the information about the detention site’s whereabouts already being publicly known.⁸ The Supreme Court potentially could have followed this line of reasoning, holding the state secrets privilege to its original intent established in Reynolds by not blocking information that is already public, but it instead sided with the U.S. government. This action further solidifies the dangerous precedent established in Reynolds by giving the United States military almost no oversight in its operations. The U.S. military, as a result of these rulings, is effectively no longer accountable to neither the U.S. public nor the Constitution. The U.S. government can block almost every case related to covert military operations by citing Reynolds, so it has almost unlimited freedom in its operations. In Zubaydah, The Supreme Court had the opportunity to create a limit on this power by ruling in favor of Zubaydah but chose instead to further validate the executive branch’s unaccountability by completely terminating the case. A Supreme Court that values its support of the other branches of the U.S. government over its own responsibility to unbiased legal interpretation is contrary to American jurisprudence.

The United States government justifies its intervention in the judicial process by claiming that it needs to maintain privilege in order to protect U.S. soldiers carrying out covert operations internationally. The United States, however, has historically used its state secret privilege, a power that is meant to be limited, in a way that blocks the judicial process. What started out as a “limited shield” that was meant to protect the national security of the country has now effectively become a “sword” that is used as a weapon against the fair Constitutional process.⁹ This process of state secrecy gained even more traction under the Bush and Obama administrations following the events of 9/11. It was at this time that the U.S. government began to use the state secrets privilege to halt entire cases rather than just exempting certain details that breach national security. Zubaydah perfectly fits into the purview of such a case as it involves potential terrorism against the United States. It was the cases that followed 9/11 that gave the U.S. government the momentum to completely terminate the Zubaydah case and the Supreme Court ruled in adherence to this decision.

Instead of blocking the entire case, as the U.S. government has recently been known to do, the government should only block information that must be privileged for national security and still allow the rest of the case to proceed. With respect to the Zubaydah case, the Supreme Court should have only blocked the further disclosure of information about the base in Poland, while continuing discovery into other aspects of the case. It seems, however, that the U.S. government did not want information about potential malpractice in advanced interrogation techniques coming to light, so they stretched their powers to close the case entirely. The Supreme Court valued the U.S. government over the precedent it set in Reynolds to not block publicly established information by upholding this ruling. The Court is serving as an aid to the U.S. government’s power rather than a check on it in matters such as these.

By viewing Zubaydah through a nuanced lens that allowed for the continuation of some discovery rather than a complete blockage of the case, the lower courts have shown more loyalty to the uninfluenced judicial process than the Supreme Court. Rather than both agreeing with the Ninth Circuit’s decision and allowing the U.S. government to exercise its limited right to the state secrets privilege, the Supreme Court demonstrated a continuance of its trend to kowtow to the U.S. government. The U.S. government, through its immense efforts to cover up the covert operations and interrogations in the Zubaydah case, has proven its willingness to prioritize needless secrecy over the civilian well-being that these secrets harm. These actions show that the Supreme Court might be influenced by the agenda of the U.S. government and might not be the unbiased arbitrator that it was designed to be.

In Zubaydah, the Supreme Court made an important decision regarding whether it will be influenced by the government or apply its jurisprudence objectively. The United States government was within its rights to claim privileged information under Reynolds, but it was up to the Supreme Court to decide if Reynolds enabled the United States government to block a case completely. The Supreme Court effectively gave the U.S. government that power in Zubaydah. In this area of the law, the Supreme Court needs to follow in the footsteps of the lower courts in serving as an objective, justice-oriented institution.

References

¹ “Background on the State Secrets Privilege.” American Civil Liberties Union, Accessed March 12, 2022, https://www.aclu.org/other/background-state-secrets-privilege.

² United States v. Reynolds et al, 345 U.S. 1 (1953).

³ United States v. Zubaydah, 938 F. 3d 1123 (2021).

⁴ Ibid.

⁵ United States v. Zubaydah, 938 F. 3d 1123 (2021).

⁶ Ibid.

⁷ “The State Secrets Privilege,” Electronic Frontier Foundation, December 4, 2012, https://www.eff.org/nsa-spying/state-secrets-privilege.

⁸ United States v. Zubaydah, 938 F. 3d 1123 (2021).

⁹ “The State Secrets Privilege,” Electronic Frontier Foundation,” December 4, 2012, https://www.eff.org/nsa-spying/state-secrets-privilege.

¹⁰ “Amici Brief in the Case of the United States of America v. Abu Zubaydah,” Physicians for Human Rights, Accessed March 12, 2022, https://phr.org/our-work/resources/amicus-brief-united-states-abu-zubaydah/.