For decades our government has hidden behind the “state secrets doctrine” to pull the wool over the eyes of Americans. This obscure legal tactic has been used by presidents of both major parties since the early 1950s to quash lawsuits by private parties. Although crafted originally as a way for the government to protect against having to reveal legitimate national security information, the doctrine has become instead a shield to prevent the government from having to answer for itself violating the law.
Most recently, the doctrine has been invoked by the Obama Administration to quash lawsuits challenging the government’s use of rendition — a procedure whereby suspected terrorists are sent (often by a private company under contract with a federal agency) to other countries to be tortured; something illegal under U.S. law.
It is time to rethink and curtail the use of this tactic, although the current composition of the Supreme Court makes such a result unlikely.
The problem with the state secrets doctrine is that it severely undermines the notion that the government must ultimately be accountable to operate within the law, and that aggrieved citizens are entitled to their day in court to seek redress when they have been harmed by government actions. Its use also removes an important check on the constitutionally restrained power of the president.
Unfortunately, the Supreme Court has endorsed this secretive behavior, and the precedent set has been used to prohibit entire cases from moving forward without explanation; leaving the private party without any means of challenging government action, no matter how egregious.
George W. Bush was no stranger to this tactic. As Gene Healy noted in his book, The Cult of the Presidency, this tactic was used only 59 times from 1976 to 2000, but at least 39 times during Bush’s presidency; always ostensibly to “protect national security.”
Despite riding into the White House waving a banner of “change” and promising transparency and open government, Barack Obama has not done much to reverse the course charted by his predecessor; from extensive wiretapping and excessive secrecy, to invoking the state secrets doctrine.
In June, for example, The New York Times reported that the Obama Administration prosecuted a whistleblower who exposed millions in government waste in secret government eavesdropping programs. More recently, Obama’s Department of Justice has invoked the state secrets doctrine in an attempt to dismiss a lawsuit filed by the father of an American citizen overseas who reportedly has been targeted for assassination by the CIA.
Predictably, many of the same liberals in the Congress who decried this sort of action under Bush have been largely silent in the face of the current Administration’s exercise of many of the same powers. Federal judges, especially those at the appellate level, often continue to uphold such powers with little debate. Clearly, there needs to be debate on such matters; for there are indeed legitimate secrets the government must protect in cases brought before the courts.
As a practical matter, there are mechanisms available to the government to protect against harmful disclosures. However, permitting a president to assert as an absolute defense to a civil suit alleging serious government misconduct or outright unlawful acts, without even having to explain why a lawsuit would harm national security, is a remedy far broader than necessary. Such a doctrine invites abuse.
Decades after the state secrets doctrine was first condoned by the Supreme Court in a 1953 decision, de-classified documents revealed that the only harm that would have befallen the government, would have been embarrassment; no national security information whatsoever was at stake. Now, nearly six decades later, the same doctrine continues to improperly deny citizens their day in court simply to keep Uncle Sam from having egg on his face.