A March 3 decision by the U.S. Supreme Court has garnered little public attention, but the significance of the ruling outstrips its notoriety. In United States v. Zubaydah, the court held that the U.S. government could invoke the so-called “state secrets privilege” to bar two former government officials from testifying in a foreign judicial proceeding, despite the fact that most of the testimony they would render was already in the public domain.
The court did so without requiring much in the way of demonstrated need to invoke the privilege by the government. The Zubaydah decision thus struck what may turn out to be a lethal blow against transparency and executive branch accountability.
Black letter law says the government can assert the state secrets privilege and thus withhold evidence in a judicial proceeding, once the court believes the government has made a compelling initial showing of harm to national security from exposure of the evidence. The government frequently will resist the need to make such an initial showing, on the ground that exposure of even preliminary evidence to a judge would defeat the purpose of invoking the privilege in the first place.
The question that arises is how much of a demonstration of harm to national security the government must make in order to claim the privilege.
In the Zubaydah case, it would have been easy for the Supreme Court to take a middle position and say that the government had waived the privilege, without making a comment on the broader question of the appropriateness of asserting the privilege in a case like this.
Justice Stephen Breyer, writing for the majority, however, went out of his way to claim that “sometimes information that has entered the public domain may nevertheless fall within the scope of the state secrets privilege.” Despite widespread public knowledge that Zubaydah was tortured at a U.S. black site in Poland, the court agreed with the government that its ability to “neither confirm nor deny its cooperation with foreign intelligence services” plays a key role in national security practice.
Thus, although the majority affirmed that the government bears the burden of demonstrating the need for secrecy in the first instance, the court went on to say that the government might not be able to meet that burden without disclosing the very secrets the privilege was designed to protect. The majority insisted that holding the government to the requirement to produce initial evidence of harm to national security would “expose … matters which, in the interest of national security, should not be divulged,” and therefore that a more relaxed standard would be appropriate.
Justice Neil Gorsuch, by contrast, insisted in his dissent that the court should have remanded for a preliminary in camera review of the evidence, maintaining that releasing the government from this requirement entailed too much deference to executive authority.
Discussing the state secret privilege more generally, Gorsuch argued that “the privilege is no blunderbuss and courts may not flee from the field at its mere display.” He maintained that courts confronted with an assertion of the state secrets privilege must carefully assess the need for the privilege, weighing that need against “the competing powers Articles I and III have vested in Congress and the Judiciary.”
The right answer om this case should have been straightforward: If the government cannot find a way of meeting its burden to demonstrate the need for the privilege, the court should reject its assertion, as the Ninth Circuit did in its opinion in the case below. But by siding with the government, despite the lack of demonstrated need, the Supreme Court effectively eliminated the government’s burden altogether, and with it the role of federal courts in evaluating claims of state secrets.
Unavoidably Circular Argument
As the majority opinion in Zubaydah illustrates, the state secrets privilege in application is unavoidably circular: the judicial test for the appropriateness of asserting the privilege requires a court to grant the government the right to invoke the privilege in the first place. The result is that the government cannot meet its burden because the evidence is too sensitive even to reveal to a court for preliminary review. If the government were strictly held to the preliminary review standard, then, it would always lose. But courts appear to fall for this Kafkaesque logic every time.
Bizarrely, the Ninth Circuit opinion was something of an outlier on this question. Federal courts have generally resolved the secrecy dilemma by accepting the government’s asserted need to assert the privilege at face value, and the Supreme Court has now aligned itself with this strongly pro-executive branch reasoning.
The Zubaydah case exposes the problematic nature of the state secrets doctrine for a representative democracy. Equipping the executive branch with a privilege that enables it to force the dismissal of any lawsuit against it removes a portion of the interbranch checks and balances the Framers built into our constitutional system.
As Gorsuch suggested, the current interpretation of the privilege is more appropriate to a monarchy than the executive branch of a democracy. “The Constitution did not create a President in the King’s image,” he wrote, but instead “envisioned an executive regularly checked and balanced by other authorities.”
This weakening of the court’s role in assessing executive branch assertions of the need for secrecy necessarily also reduces the role of federal courts in vindicating individual rights, rights which in many cases will be constitutional in nature. It sets a precedent for the handling of other executive branch privileges when they conflict with generally applicable federal law. The willingness of the Supreme Court to fall into line with this weakening of its own power to review executive branch action is one of the more dismaying aspects of the Zubaydah decision.
But perhaps one of the gravest concerns with the decision is the court’s apparent willingness to allow the government to assert the state secrets privilege to cover up illegal conduct. The government of course denied that was its motivation, citing the need to preserve diplomatic relations overseas instead. But as Gorsuch suggested, the more likely reason was to spare the government the embarrassment of having to admit that it engaged in heinous acts that violated domestic and international law.
Assessing the Damage to National Security
The critical questions we must ask about the state secrets privilege are as follows: Does revealing illegal government conduct damage U.S. national security interests more than accepting responsibility for them? Or is greater damage done to national security when the government engages in illegal conduct and tries to cover it up?
The damage to national security becomes apparent when the U.S. attempts to claim the protection of such laws itself—laws the U.S. wants the Russians to abide by, for example, in the treatment of U.S. nationals captured in the war in Ukraine.
Doctrines that enhance executive branch secrecy ultimately damage national security if they interfere with the ability of other federal branches to hold the executive branch to account. By allowing the government to shroud its own conduct in secrecy, we lose an important avenue for public scrutiny of government conduct.
Ultimately it will take an act of Congress to remedy the excessive deference to executive branch authority the privilege currently reflects. Several times members of Congress have introduced legislation to address this trend. The State Secrets Protection Act, for example, was introduced with bipartisan support in 2008 and later in 2013 and 2014. The act would require courts to do more than pay lip service to the requirement that the government make an initial showing of the need for secrecy.
While these earlier bills did not garner widespread congressional support at the time, the present moment may be different. With new revelations on a nearly daily basis of torture inflicted in the global war on terror, and a more acute sense of how excessive government secrecy can undermine democracy, the moment may be ripe for a fresh look at legislative efforts to limit executive branch overreach and reenergize federal courts to question the need for government secrecy around its conduct in war.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Claire Finkelstein is Algernon Biddle Professor of Law, professor of philosophy, and faculty director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.