by Bob Barr
Most Americans believe that if they have been seriously harmed by actions of the federal government, they are at least entitled to bring their claim before a court of law and have it fairly and transparently decided. They would be wrong.
Thanks to a seven decades-old doctrine, called the “state secrets privilege,” all that government lawyers need to do to prevent a case against the government from proceeding is to claim that national security information would be revealed, and the case is stopped dead in its tracks regardless of the merits.
As outrageous as this doctrine is, federal courts for decades have permitted Uncle Sam to escape being held accountable for misdeeds, such as unlawfully surveilling individuals, by claiming “state secrets.” There is a case now before the U.S. Supreme Court, however, that might at long last and to some degree limit the government’s power to assert this blanket defense.
Holding the federal government accountable in a court of law never has been easy. An aggrieved person has to overcome numerous legal hurdles, not the least of which is sovereign immunity, a principle we inherited from our former English masters, which shields government officials from many, if not most, civil legal actions. Beyond piercing the sovereign immunity shield, a person asserting a claim against a government agent or agency for violation of his constitutional rights must surmount other difficult hurdles, including standing and timeliness, among others.
Notwithstanding these legal roadblocks, however, there is opportunity for an individual asserting that his constitutional rights have been injured by actions of the federal government to bring legal action and to at least make the government respond meaningfully. If, however, the government claims that “state secrets” are involved, and that forcing it to answer the individual’s complaint or to provide evidentiary materials would reveal information harmful to the national security, then neither the parties nor the judges can inquire further. The private parties are flat out of luck.
There are internal government policies supposed to limit the use of the state secrets doctrine in litigation. A memo issued in 2009 by then-Attorney General Eric Holder to Justice Department lawyers, federal departments and agency heads directed them to be judicious and careful in asserting state secrets claims so as to “provide greater accountability” and “strengthen public confidence.”
Unfortunately, the known history of the state secrets doctrine gives little comfort that it has been asserted in accord with good faith.
The first time in the modern era that the government decided to try this method of fighting a lawsuit filed against it was early in the Cold War. Widows of three civilian contract personnel sued the Air Force over the deaths of their husbands, who were killed in the crash of a military plane testing electronic equipment. When the case reached the Supreme Court in 1953, the justices upheld the government’s state secrets assertion, thereby denying the widows the ability to pursue their claims.
Years later, when materials in the 1953 case were declassified, it became clear that the case involved no national secrets whatsoever — only evidence that would have been embarrassing to the government.
Still, the privilege continues to provide broad cover for government actions. It has been employed in recent years to limit public access to information concerning the extent of the government’s foreign intelligence surveillance programs, its use of torture, the size of terrorist watchlists and other information the government does not want to be made public.
The government’s ability to hide behind the completely opaque state secrets cloak, however, will be tested next year, when the High Court decides whether a federal judge who is presiding over a case involving alleged unconstitutional surveillance, can review disputed materials in chambers (that is, in private ) simply to determine if the government’s claim of national security harm is legitimate.
The fact that the government is so vigorously opposing even this extremely limited chink in its state secrets shield, tells us much about what it does not want people to see.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.