American Conservative, November 16, 2021
“State Secrets” is often invoked to give federal agencies a free pass from justice, without having to explain why.
Will federal law enforcement agencies ever be forced to disclose their abuses of American citizens? The Supreme Court could answer that question in its decision on a potentially landmark case it heard last week regarding surveillance of Muslim communities in California. Though the case may be decided on narrow grounds, it involves a legal Pandora’s Box that has spawned and shielded the worst abuses of the post-9/11 era.
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. Trevor Aaronson, author of The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, estimated that only about 1 percent of the 500 people charged with international terrorism offenses in the decade after 9/11 were bona fide threats. Thirty times as many were induced by the FBI to behave in ways that prompted their arrest.
The FBI has been able to trample Americans’ rights and privacy because it shrouds its abuses. The Supreme Court case hinges on the State Secrets doctrine—something that the Court created in a 1953 case involving the cover-up of the crash of a B-29 bomber. The Air Force said that any disclosure of the case would expose vital national security secrets, and the Court deferred to the military. Half a century later, the government declassified the official report which contained no national security secrets but proved that negligence caused the crash.
The case the Supreme Court heard last Monday was a class-action lawsuit against the FBI for allegedly spying on Muslims solely because of their religion. The justices heard lawyers disputing whether the Foreign Intelligence Surveillance Act could be invoked as a work-around to avoid the total lockdown of information by the State Secrets doctrine. Even though the FBI targeting of Muslims became public knowledge when the informant blew the whistle, the FBI still claims exposing other details would endanger national security—and thus that the case must be dismissed. Ahilan Arulanantham, the lawyer for the Muslims who brought the lawsuit, commented, “The government is saying: ‘We didn’t target people solely on the basis of religion. Beyond that, we can’t say anything because of state secrets, and therefore, the whole case has to be dismissed.’”
The State Secrets doctrine was rarely invoked until this century. The Bush administration invoked State Secrets in almost 50 cases, far more than all previous administrations combined. Bush administration lawyers played the State Secrets card to seek “blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs,” according to a study by the bipartisan Constitution Project.
When National Security Agency wiretapping was challenged in federal appeals court, Judge Harry Pregerson groused in 2007 that the “bottom line…is the government declares something is a state secret, that’s the end of it. The king can do no wrong.” Judges presumed that the Bush administration was acting in good faith even after its false statements on illegal wiretapping were exposed. Edward Snowden’s leaks of NSA documents and Foreign Intelligence Surveillance Court rulings proved that the feds had created a surveillance state that illegally vacuumed up the email and phone records of tens of millions of innocent Americans.
The State Secrets doctrine is a get out of jail free card for torturers. The Bush administration used claims of State Secrets to prohibit torture victims from disclosing to their defense attorneys the specific interrogation methods they suffered, as I reported in a 2007 piece for TAC. 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 State Secrets doctrine to justify refusing to disclose the standards it used to place Americans and others on the assassination list of suspected terrorists.
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 U.S. 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.
The Biden administration is championing the same blanket secrecy previously invoked by the Bush, Obama, and Trump administrations. Justice Brett Kavanaugh, a former Bush administration lawyer who championed the State Secrets doctrine as “foundational to the national security of the country,” urged his colleagues not to make a broad “drive-by” ruling on the “massively important issue.” Chief Justice John Roberts talked as if the State Secrets doctrine was on a moral and legal par with habeas corpus, even though the justices got snookered by the Pentagon when they concocted the doctrine. Other justices signaled that they favored a narrow ruling that would remand the case to a lower court for further deliberations and more years of legal wrangling.
The current case is a superb opportunity to debunk that pernicious legal doctrine that has become a protective wall around the worst abuses of the war on terror. The State Secrets doctrine presumes “government knows best, and no one else is entitled to know.” Not only are the feds above the law: they don’t have to explain why they are above the law. 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. Government must be presumed innocent as long as it refuses to divulge the evidence of its guilt.
“Justice Delayed is Justice Denied” is apparently irrelevant when FBI prerogatives are at stake. Insofar as the Supreme Court embraces legal mummeries that permit hiding federal crimes, the Court is betraying democracy. Only fools expect “government under the law” when federal officials can secretly entrap and persecute other Americans.