The Supreme Court ruled in March that Americans have no right to learn the grisly details of CIA torture because the CIA has never formally confessed its crimes. The case symbolizes how the rule of law has become little more than legal mumbo-jumbo to shroud official crimes. And it is another grim reminder that Americans cannot rely on politically approved lawyers wearing bat suits to save their freedoms.
In 2002, the CIA captured Abu Zubaydah, a Palestinian radical, in Pakistan and falsely believed he was a kingpin with al Qaeda. The CIA tortured him for years in Thailand and Poland. As Justice Neal Gorsuch noted, the CIA “waterboarded Zubaydah at least 80 times, simulated live burials in coffins for hundreds of hours,” and brutalized him to keep him awake for six days in a row. The CIA has admitted some of the details of the torture, and Zubaydah’s name was mentioned more than a thousand times in a 683-page Senate report released in 2014 on the CIA torture regime. But the Supreme Court permitted the CIA to pretend that the case is still secret.
The holy relic of “state secrets”
This case turned on the invocation of a holy bureaucratic relic of dubious origin — “state secrets.” As the court’s 6–3 ruling, written by Justice Stephen Breyer, noted, “To assert the [state secrets] privilege, the Government must submit to the court a ‘formal claim of privilege, lodged by the head of the department which has control over the matter.’” This is akin to permitting the Wizard of Oz to rotely certify that his curtain must remain closed for the good of all the munchkins in Oz. After a federal agency announces that it is entitled to secrecy, the court “should exercise its traditional “reluctance to intrude upon the authority of the Executive in military and national security affairs,” Breyer wrote. Breyer neglected to explain how self-government can be reconciled with near-total secrecy of an elected government’s foreign and military policies.
The court upheld a “state secrets” claim to block Zubaydah’s lawyers from serving subpoenas on the psychologist masterminds of the CIA torture program to learn the details of his interrogation in Poland. The court’s ruling also blocks Polish investigators seeking information about the crimes committed at a CIA torture site in their nation.
This case illustrated the fantasy world that permeates official Washington, D.C., controversies. In 2019, federal Judge Richard Paez rejected the CIA’s privilege claim because “in order to be a ‘state secret,’ a fact must first be a ‘secret.’” Even the president of Poland admitted that crimes were committed at that CIA torture site in his country.
But the Supreme Court disregarded common sense, ruling that “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.” According to the Supreme Court, “truth” depends solely on what federal officials have publicly confessed. ACLU attorney Dror Ladin groused, “U.S. courts are the only place in the world where everyone must pretend not to know basic facts about the CIA’s torture program.”
It gets worse. Then-CIA chief Mike Pompeo asserted that exposing details of torture in Poland could hinder foreign spy agencies’ partnerships with the CIA. The court upheld “state secrets” to aid the CIA in “maintaining the trust upon which those relationships [between spy agencies] are based.” The court warned, “To confirm publicly the existence of a CIA [torture] site in Country A, can diminish the extent to which the intelligence services of Countries A, B, C, D, etc., will prove willing to cooperate with our own.”
The court acted as if it was merely smoothing the path for a Girl Scout troop to sell cookies at a shopping center instead of shrouding a “crime against humanity” (the United Nations’ verdict on torture). Pompeo bluntly described the CIA modus operandi: “We lied, we cheated, we stole. It’s like we had entire training courses.” The CIA’s long record of lawless assassinations did nothing to deter the deference it received from the court. Instead, the “mutual trust” between conniving spy agencies is more important than the trust that Americans should have in their own government.
State secrets and the war on terror
In his decision, Justice Breyer stressed, “Obviously, the Court condones neither terrorism nor torture, but in this case we are required to decide only a narrow evidentiary dispute.” But the Supreme Court necessarily condones any crime it helps cover up. The court’s sweeping rulings on state secrets and sovereign immunity have provided a get-out-of-jail-free card for Bush-era torturers and torture policymakers. No victim of Bush-era torture has received justice in federal courts.
State-secrets claims multiplied after the start of the war on terror. The Bush administration routinely invoked state secrets to seek “blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs,” according to a study by the Constitution Project. In 2007, federal judge Harry Pregerson groused that the “bottom line here is the government declares something is a state secret, that’s the end of it. The king can do no wrong.” In 2009, a federal appeals court slammed the Obama administration’s use of state secrets: “According to the government’s theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and the limits of the law.” The Obama administration invoked the state-secrets doctrine to justify refusing to disclose the standards it used to place Americans and others on the assassination list of suspected terrorists.
As author Barry Siegel noted, in the vast majority of cases where state secrets are invoked, “judges rule blindly, without looking at the disputed documents underlying the State Secrets claims.… They choose, instead, to trust the government — the ultimate act of faith.” Eventually, instead of a good excuse for breaking the law, all that is necessary is to claim that an excuse exists, even if the excuse is secret.
The origin of state secrets
Gorsuch noted that the Supreme Court created the doctrine in a 1953 case in which the Pentagon claimed “state secrets” to cover up the details of an Air Force crash. Half a century later, the government declassified the official report of the crash. It contained no national-security secrets but instead detailed how gross negligence had caused the crash (which killed three people). Yet the Supreme Court clearly has no shame about being conned by the Pentagon and other federal agencies.
State secrets is akin to a fraudulent religious miracle that was not exposed until after it became canonized. During oral arguments at the court last November, Chief Justice John Roberts talked as if the state-secrets doctrine was on a moral and legal par with habeas corpus, which was specifically mentioned in the original Constitution even prior to the Bill of Rights. Justice Brett Kavanaugh, a former Bush administration lawyer, whooped up the state-secrets doctrine as “foundational to the national security of the country.” Gorsuch, on the other hand, observed that “it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds.”
Gorsuch, whose dissent was joined by Justice Sonia Sotomayor (the most liberal member of the court), warned that granting “utmost deference” to the CIA would “invite more claims of secrecy in more doubtful circumstances — and facilitate the loss of liberty and due process history shows very often follows.” Law professor Steve Vladeck said the “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.” A confidential report in February revealed that the CIA is vacuuming up masses of personal information from American citizens, probably in violation of federal law. But don’t expect to learn the tawdry details or the names of victims because of the state-secrets doctrine.
The first sentence of the Associated Press report on the ruling perfectly summarized the decision: “The Supreme Court sided with the government.” Swallowing state-secrets claims vivifies how the Supreme Court has become the guardian of Leviathan Democracy. Federal agencies are creating trillions of pages of new secrets each year. The majority of Supreme Court justices have no problem with federal agencies systematically blindfolding American citizens to the actions of the federal government.
When Justice Breyer, who wrote the court decision, announced his impending retirement, the media gushed over his long record of pragmatism at the high court. William James, the system’s philosophical godfather, declared that pragmatism means “that ideas become true just in so far as they help us to get into satisfactory relations with other parts of our experience.” James explained that “any idea upon which we can ride … is true instrumentally.” Breyer was popular with places like the Washington Post because of his endless deference to federal agencies on cases involving the Fourth Amendment (prohibiting unreasonable searches) and other issues. In D.C., covering up torture is pragmatic because it permits all three branches of the government to con the American people into believing that their rulers are on a leash. The most celebrated pragmatists in recent Washington history have all been “useful idiots for Leviathan.”
Bipartisan support for state secrets
Some Washington pundits had expected that Biden’s election would result in a revival in civil liberties after the purported Trump reign of darkness. But even before the state-secrets case, the Biden administration urged a court to dismiss a lawsuit brought by an American citizen who claimed he had been tortured in Egypt, because the alleged torturer had diplomatic immunity because he works for the International Monetary Fund. (Previously, the IMF was only permitted to torture economies.)
Biden’s embrace of the state-secrets doctrine is tricky to reconcile with his other rhetoric. In his inaugural address last year, Biden proclaimed, “Each of us has a duty and a responsibility as citizens, as Americans and especially as leaders … to defend the truth and defeat the lies.” In a speech last year to Congress, Biden declared, “America is rising anew, choosing … truth over lies.” Last December, Biden issued an executive order to “rebuild trust in government.”
But why should anyone trust a government that refuses to admit crimes about which the entire world knows? The same legal arguments used to shroud Bush-era torture will be used in coming years to cloak abuses by the Biden administration and future presidents. The state-secrets doctrine presumes “government knows best, and no one else is entitled to know.”
The state-secrets doctrine provides a license for federal agencies to lie to their victims and to federal judges. In 2005, a Stanford University graduate student, Rahinah Ibrahim, went to San Francisco International Airport to catch a flight to Hawaii. Instead, she was handcuffed and locked up overnight because her name was on the No Fly list. She was eventually permitted to fly to her home country, Malaysia, but was prohibited from returning to the United States. She sued to discover why she was blacklisted, launching an eight-year battle that entailed more than $3 million in legal costs.
Attorney General Eric Holder warned that “disclosure that an individual is not a subject of an FBI counterterrorism investigation could likewise reasonably be expected to cause significant harm to national security.” Holder also swore that the feds were not invoking “state secrets” to conceal “administrative error” or to “prevent embarrassment.” In 2014, federal judge William Alsup obliterated the official storyline when he disclosed that Ibrahim had been banned from flying simply because an FBI agent in 2004 “checked the wrong box” on a terrorism investigation form. The feds carried out a nine-year cover-up to preserve Americans’ blind faith in FBI paperwork.
Shortly after the Supreme Court swallowed the state-secrets claim in the Polish torture case, it effectively acceded to state secrets in one of the most appalling FBI abuses of the war on terror. Beginning in 2006, the FBI sent Craig Monteilh, a former Drug Enforcement Administration informant, into mosques in southern California to gather evidence against Muslims at worship. His FBI handlers gave Monteilh permission to sleep with Muslim women he targeted and to secretly tape record their pillow talk. He also placed a recording device to covertly tape Muslim therapy sessions. National Public Radio noted the surveillance “yielded no results and proved a huge embarrassment to the bureau” after Monteilh went public in 2012 to denounce his own behavior and the FBI. Monteilh encouraged mosque members to engage in bombing and other violence. He was part of an army of 15,000 FBI informants recruited after 9/11 who fueled pervasive entrapment operations.
When three members of the mosque filed a lawsuit against the FBI, the feds invoked “state secrets” to torpedo their long-lasting case. The New York Times aptly summarized the result in early March: “Supreme Court Sides With F.B.I. in Case on Spying on Muslims.” Justice Samuel Alito’s opinion stressed that “we have never suggested that an assertion of the state secrets privilege can be defeated by showing that the evidence was unlawfully obtained.”
The state secrets doctrine has been an anti-Constitution scandal for at least 20 years. The feds’ sway over damning information is boundless — at least until some scofflaw like Edward Snowden or Julian Assange or Daniel Hale obliterates federal credibility.
“No free government can survive that is not based on the supremacy of the law” is the motto chiseled above the entrance to the Justice Department headquarters. But “supremacy of the law” now means little more than the Supreme Court recycling legal mummeries to hide federal atrocities. How many official crimes can democracy survive? Unfortunately, the answer is a secret.
This article was originally published in the June 2022 edition of Future of Freedom.