The “State Secrets” Sham

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.

19 comments Add your comment


October 11th, 2010
8:10 am

“Hey Joe…have you seen my waterboard?”


October 11th, 2010
9:51 am

The first time the “State Secrets Doctrine” was used was in the 1953 U,S. vs. Reynolds. A B-29 carrying new electronic equiptment crashed in Waycross Georgia in 1948. Three employees of radio Corporation of America were killed. The three widows filed a suit against the government for compensation. The judges got to look at all the information involved before making a judgement that the case came under “State Secrets Doctrine.”

Now, today, all the administration has to say is “the case involves classified information” and that is it. The Judges should have the right to look at all the information and make an informed judgement. That is what the legal system is for, to determine what is legally proper and what is not. Circumventing examination of all the evidence is wrong.

Hillbilly Deluxe

October 11th, 2010
10:21 am

(often by a private company under contract with a federal agency)

In my opinion, all military and intelligence matters need to be in house. Get rid of the contractors.


October 11th, 2010
11:13 am

Unfortunately, Barr is correct re no relief in sight from this Supreme Court. The Chief Justice is a supporter of a strong central government and less of a supporter of individual and states rights. The Chief has 4 votes, the opposition 4 votes with Justice Kennedy making the final call.

Expect no help from that quarter.

Swede Atlanta

October 11th, 2010
11:39 am

The State Secrets doctrine places the American executive just a step away from the same unbridled power possessed by Soviet regimes and still maintained by the North Korean dictator and the Maoists in China.

I fully support the right of the government to a process that protects true state secrets but rather than a total ban on these suits we need to find a way for the issue to come before a competent INDEPENDENT authority. Today the judiciary simply rubber stamps the executive branch’s assertions of the state secrets privilege.

Common Man

October 11th, 2010
12:42 pm

Swede Atlanta … you sre so correct. I believe the current administration looks at this “power” as another means to assert their socialist agenda under a shield of immunity.


October 11th, 2010
12:49 pm

Bob I would suggest you recant this story asap. You and I both know the U.S. doesn’t engage in torture.

No no no no Bob. You must be thinking of the mullahs in the middle east.

We do not torture Bob get your facts right you unpatriotic hack. we are in a war against jihadism. These nuts are trying to institute sharia law and it ain’t gonna happen if i have anything to do with it.

God Bless the great U.S. of A.

Bob I am disappointed with you. You know better. I hope you and the editor recant this awful column soon. If David Rockefeller gets a wind of what you wrote he will not be very happy.

Kretzahl Slagfish

October 11th, 2010
1:31 pm

So a few folks get “disappeared” every now and again. That only happens to the guilty. If you’re not doing anything wrong, then you don’t have to worry. The benevolent father will protect us. Mission Accomplished!


October 11th, 2010
4:05 pm

The “State Secrets” scam is only one of the very many ways both Democrats and Republicans show their contempt for justice and the American people. I wonder how long it will be before the voters realize a totaly new form of government will have to be voted in if we ever are to have honest, decent and just lawmakers.


October 11th, 2010
4:57 pm

I’ve been curious about this for some time: Is Justice Anthony Kennedy the most powerful person in the country?


October 12th, 2010
2:05 am

“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”

Isn’t this the American (Traitor) who is now a leader in Al Qaeda. I’m glad that lawsuit was dismissed and I hope his son dies soon.


October 12th, 2010
2:20 am

It has been reported in the news that President Obama “borrowed” the Bishop Eddie Long’s “private jet” during his campaign. You wonder if, then, Senator Obama knew about internet postings, primarly European based blogs and other aircraft sighting reports tying the location of the Bishop Eddie Long’s jet, to rendition sites (under its former call sign, before the Bishop changed it to N# 747NB), before Obama borrowed it from Long Charter Air, LLC or from New Birth Baptist? At one point the FAA’s registry records showed New Birth Baptist was leasing the jet from directly from one of Eddie’s for profit business corporation. And, the Georgia Secretary of State stills shows the Long Charter Air, LLC as having an address the same as the church.

So much for separation of Church, “State”, private use, and other dirty uses for that “special” aircraft.

And you have to wonder what’s up with Phoenix Air Group based out of Cartersville. They apparently do military ops, national security work, and renditions/rendition related work (according to the same rendition-jet trackers)??? And apparently when called upon (by whom in high places???), they retrieved the bodies of Coretta Scott King from Mexico, and her daughter Yolanda, from California, for their final rest, here in Georgia?

Mr. Barr, can a church essentially lease a jet from its own church bishop, who operates under a for profit business LLC, then turn around and sublease it to the political campaign of Obama, or for a government special op (like renditions) and still keep its non taxable status under IRS regulations?
Some senator was supposedly going to investigate this. I think it was Chuck Grassley.

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Barring Logic

October 12th, 2010
11:53 am

Barr says something is wrong with “the current composition of the Supreme Court?” Huh?

The last I heard was that this is a very balanced Supreme Court…. in terms of conservative vs. liberal. If anything, it leans towards the conservative side since Bush placed many of them.

Is Barr saying that the Supreme Court is too conservative?


October 12th, 2010
12:05 pm

“I seem to be living in a nation that simply does not know what freedom is.” Writer – John Whiteside Parsons 1946: founder of AreoJet Corporation and Jet Propulsion Laboratories. (And this was written well before the United States became an actual police state.)

Ragnar Danneskjöld

October 12th, 2010
2:34 pm

I’d probably be excited about this topic if I thought plaintiff’s attorneys offered a net positive contribution to freedom and security. Then again, I’d fly to the moon on gossamer wings if I could only catch a gossamer.


October 12th, 2010
8:14 pm

Well Bob Barr, why weren’t you worried about it when YOu were in with the movers and the shakers? Oh yeah, that’s right ’cause you were in with the movers and shakers so you didn’t have to pretend to be interested in anything other than money. And young girls……..

Tea Party Babe

October 13th, 2010
10:17 am

Ya think some of the state secrets involve that traitor in the White House’s birthplace? Or the slams he is putting on the Bill of Rights and Free Speach? Oh, he can open his mouth and lie with every word, but let anyone else (conservatives) say a word against him or his thugs and he is moving to censor them. I don’t know about you, but I would be more worried about what this imposter is doing to our Constitution than I would about his torturing terrorists.


October 14th, 2010
5:41 am

One day you Tea Party sign holders and college liberals will come a painful realization. That both the Democrats and the Republicans both share the same goal. That goal is the removal of civil liberties and the creation of a Government who’s authority over the citizens will be a clone of the Soviet Union in it’s prime.

Sadly, neither of you won’t realize this in time. You’ll sit around blaming the other Party while the country systematically is changed. Thankfully I have dual citizenship (Scotland), so I’ve got a way out when it’s simply gone too far.

Oh trust me, it’s going to go “too far” and other countries aren’t as immigrant accepting friendly as the US. You’ll be stuck here. Have fun :)