In the United States, a citizen may sue the government. It is fortunate that it should be so, because, as libertarians like to point out, government is society’s single worst offender. The ability to hold it to account in the courts helps safeguard the rights of the individual, the consistent protection of which is the meaning of a free society. Robust judicial review of government actions is an expression of the idea that no one should be above the law, that ours is a country of laws not men, a principle enshrined in the Declaration of Independence and in the Constitution’s three-branch structure. If justice is in fact blind, as we’re taught, then she cannot see that a defendant in court is an agent of the state, blazoned with its symbols of power. In practice, though, the eyes of justice are not only open to those symbols but impressed by them, content to acquiesce in government malfeasance. The War on Terror has aggravated the problem of judicial capitulation to an assumptive and autocratic executive branch. Since the events of September 11, the federal courts have been still more susceptible to executive-branch legal arguments and interpretations, giving the government a free hand to violate individual rights. In its prosecution of the baneful War on Terror, the government has leaned heavily on the state secrets privilege, articulated in the Supreme Court’s opinion in United States v. Reynolds; this case has thus become one of the key legal instruments of injustice in the twenty-first century.
The Reynolds story begins at an Air Force facility in southeastern Georgia. In the early 1950s, the Air Force was testing new equipment on a Boeing B-29 bomber when the plane’s engine caught on fire, resulting in a crash that killed six of the nine crewmembers on board. The widows of three civilian contractors who died in the crash brought a lawsuit against the federal government and requested that it produce official Air Force accident reports.
The government’s first attempt to justify withholding the documents, based on an appeal to Air Force regulations, failed to persuade the trial court. As the Constitution Project’s Louis Fisher observes, the authority relied on was a 1789 “housekeeping” statute that merely instructed federal agencies to maintain official records; it neither “authorize[d] the withholding of documents from plaintiffs or the courts,” nor empowered the government to unilaterally determine which of its own records were privileged. The court held that the plaintiffs had demonstrated “good cause for production,” ordering the government to produce the subject reports. It was the government’s response, its subsequent refusal to produce, and the arguments attached thereto, that were the source of the Reynolds case’s notoriety.
Refusing to hand over the records, the government argued that they were the subject of a special evidentiary privilege, just as, for example, communications between an attorney and his client. Eventually reaching the Supreme Court and decided in 1953, the case marks a sweeping reformulation of the now-infamous state secrets privilege, so frequently invoked since September 11 to frustrate accountability and undermine the rule of law.
The Reynolds decision represented a significant departure from the precedent, redefining what had been a far more modest standard. Several previous cases had held that the privilege, once invoked, did not foreclose further judicial inquiry, and the traditional common-law rule had placed all questions about evidence squarely with the court, not with an interested party. Indeed, it is noteworthy that at the intermediate appeal in Reynolds, before the case had reached the Supreme Court, the Third Circuit held that accepting the government’s argument would yield a “sweeping privilege” so strong as to be “contrary to a sound public policy.”
The Third Circuit’s decision emphasized the dire separation-of-powers implications of the government’s position, which it said would mean forcing the courts to “abdicate the judicial function” — to allow the federal government to usurp a judge’s rightful power. The Supreme Court, of course, fatefully disagreed, satisfied that the government could be trusted to police its own claims of privilege. This judgment turned out to be an enormous (and embarrassing) error with far-reaching consequences.
When the documents were declassified decades later, they betrayed the government’s pretextual appeal to the state secrets privilege. It turned out that the government’s statements in the case amounted to a fraud on the court: it withheld the accident reports not because they contained sensitive military secrets, but because they revealed the truth behind the plane crash — that the Air Force had failed to properly maintain the B-29 and knew that it had a faulty engine. Aware that the files would demonstrate its negligence, the government dishonestly retreated to the state secrets privilege. As Fisher notes, the government’s brief to the Supreme Court took advantage of slippery language to avoid the pivotal question of whether the withheld reports actually contained sensitive military secrets. By making no representations one way or the other about the character of the files’ contents, the government could later argue that it never actually lied to the court.
Through the Reynolds doctrine, the government became its own judge, exempt from scrutiny and granted license to violate the Constitution and international law with impunity. Such is the peremptory power of kings and emperors, of despots positioned safely beyond the law’s reach. More accurately still, their will becomes the law. In its opinion in Reynolds, the Court rather unashamedly subordinated the rule of law to the will of U.S. government agents. Since 9/11, the government has wielded this powerful privilege to devastating effect, striking a major blow at the constitutional separation of powers by thwarting the judicial branch in the exercise of its legitimate role. The judiciary has arguably been quite complicit in this, the War on Terror’s process of constitutional degeneration. Too often the courts simply take the government’s assertions at face value, declining to undertake any independent inquiry, satisfied with the apparently decisive incantation “national security.”
The government has called on the state secrets privilege in several high-profile extraordinary rendition cases. In one such case, decided by the Ninth Circuit in September 2010, the plaintiffs sued Jeppesen Dataplan, Inc., a Boeing subsidiary based in California, alleging that the company assisted the CIA in transporting them to be illegally tortured and imprisoned. Surreptitiously blindfolded, shackled, and shuttled to nightmarish military black sites, the plaintiffs were then interrogated and subjected to a variety of torments, both physical and psychological. One plaintiff, an Ethiopian man named Binyam Mohamed, was, according to his lawyers at the ACLU, severely beaten and frequently drugged, his attackers breaking several of his bones, cutting his genitalia with a scalpel, threatening him with rape, and detaining him in a room with open sewage. Mohamed lived in this hell for a year and a half.
Another of the five plaintiffs, Abou Elkassim Britel, an Italian citizen rendered to Morocco, was bound by his hands and feet, hung from the walls or the ceiling, and interrogated for hours on end while his torturers threatened his family members with rape. Britel’s interrogators also used “bottle torture,” whereby a bottle was forced into his anus.
This illegal process of arrest and removal to foreign countries in which torture is carried out is known as extraordinary rendition; the torture itself is no less euphemistically termed “enhanced interrogation.” The U.S. government has also employed rendition to secretly kidnap foreign nationals in other countries so that they may be subjected to the jurisdiction of American courts, usually after they have already been tortured abroad. Since 9/11, extraordinary rendition has become a central feature of the United States’s anti-terror repertoire, despite the Obama administration’s pretense of opposition to torture.
Extraordinary rendition allows the U.S. government to outsource torture at a time when the legal parameters surrounding the prosecution of the War on Terror are in a state of flux. The Jeppesen Dataplan case represents the alarming lawlessness that is the practical result of these ambiguities. The government, intervening in behalf of the defendant, made its formal claim of privilege through Michael Hayden, erstwhile director of Central Intelligence. Hayden’s public declaration contended that virtually any conceivable question of fact that would arise at trial was within the privilege. Litigating the case, Hayden said, “could be expected to cause serious — and in some instances, exceptionally grave — damage to the national security of the United States.” The Ninth Circuit, pointing to Reynolds, agreed with the government and passed the buck to Congress “to enact remedial legislation … to address claims like those presented here.”
In dismissing the case, an almost evenly divided Ninth Circuit, sitting en banc, held that “any effort by [the defendant] to defend would unjustifiably risk disclosure of state secrets.” So while the Ninth Circuit’s opinion in the case stated that invocation of the state secrets privilege should not result in the dismissal of a case per se, its judgment shows that as a practical matter the ironclad protection of the privilege will almost certainly preclude litigation. Indeed, the privilege thus defined, it becomes difficult to imagine any military or intelligence matter that would fall outside of its protective ambit.
For the Jeppesen Dataplan plaintiffs, like those in Reynolds, an appeal to the nation’s highest court was their last hope. But in May 2011, the Supreme Court denied certiorari and, in so doing, denied the five CIA victims a day in court, the mere chance to present their case. “The courts,” wrote the ACLU’s Susan N. Herman in 2011, “have been failing terribly.” Herman noted further that the Supreme Court seems to be interested in civil-liberties lawsuits only when the government has lost in the lower court.
Critics of such expansive interpretations of the state secrets privilege do not necessarily argue that it should be abolished altogether, that it doesn’t have its place in protecting sensitive military information. They rather contend that it is the right of the judge presiding over a given matter to make that determination on the basis of a careful and independent review of the documents in question. For the government to decide for itself is a perverse deformation of a structure that contemplates a separate judicial review of government actions and arguments. It is the independence of the third branch that is supposed to impart impartiality to it. Of course, the detached objectivity with which we credit the court system is a fiction insofar as courts are themselves government bodies. It is clear that the sprawling administrative state that is the executive-branch no longer considers itself bound by either the elected representatives of Congress or the courts. It flouts the law and the authority of the other two branches. And executive-branch power grabs, developing through the twentieth century and propelled by the Bush administration’s post–9/11 policies, have persisted in the Obama years. As Hayden said in an interview in 2010, “Obama has been as aggressive as President Bush in defending prerogatives about who he has to inform in Congress for executive covert action.”
A free society cannot last where even the possibility of justice is foreclosed, where a citizen is prevented from looking to the legal system for redress. The state secrets privilege makes a mockery of genuine judicial scrutiny and makes American less safe, not more.
This article was originally published in the May 2015 edition of Future of Freedom.