After nine days and four court appearances, the Trump administration realized recently it could raise the state secrets privilege as a defense in the case of the people it’s deported without due process to Venezuela. It did so.

The Supreme Court rendered a decision in 1953 involving the heirs of some civilian contractors who died in the crash of a B-29 bomber carrying out Air Force tests of a top-secret communications device. In this Reynolds decision, the court ruled that the case could not go to trial because the U.S. government had the right to withhold evidence from a secret mission. Without that evidence, there would be insufficient information to make a decision – therefore the trial should not take place.

This became known as the state secrets privilege. The government could invoke this privilege by a simple statement and the courts would have no right to see supporting evidence.

It subsequently became clear, following declassification of evidence in 2000, that instead of information about the secret communications device being tested, the evidence showed that the plane’s maintenance had been sorely neglected. This contributed to its crash. The evidence withheld in the original Reynolds case was not a state secret at all; it was simply information that would have been very embarrassing to the government of the day. 

Bringing forward this evidence might have allowed the families of those killed to get additional government compensation, had they received their day in court – and after this information became public, the heirs of the original plaintiffs did take the government to court. The Third Circuit Court of Appeal refused to reconsider the original state secrets case, though, and the Supreme Court declined to intervene.

Clearly the state secrets privilege was built upon a lie. The Truman administration, arguing the case in 1952, knowingly and cynically deceived the Supreme Court of the United State to hide its incompetence.

Recent uses of the privilege

In the five decades from the Reynolds case until the terrorist attacks of Sept. 11, 2001, there were only about a half dozen cases in which the government asserted the state secrets defense. Since then the pace has heated up – it is estimated that there have been between 30 or 40 more cases in a little under 24 years. 

Only 16 or 17 have reached the Supreme Court, in three types: government employees (often CIA) or their families suing the government, including in the Reynolds case; contractors seeking data for defense in lawsuits brought against them by the government; and terrorists or suspected terrorists trying to prove that the government overstepped its bounds in its treatment of them.

Two post-9/11 cases involve the wrongful identification of terrorism suspects who were then subject to rendition and torture.

In the first, Maher Arar, a Canadian citizen, was arrested in New York while changing planes on a trip between Egypt and Toronto. He suffered extraordinary rendition to Syria where he was tortured. In Canada, the case was subject to a full-scale judicial inquiry in which the United States declined to participate. The inquiry reported in September 2006 that Arar had no connection to al-Qaida and that Canadian and U.S. officials were negligent in their duties. When Arar brought suit in a U.S. District Court, the case was dismissed because the government claimed the state secrets privilege.

In the second, Khalid El-Masri, a German, was seized by border guards in Macedonia and transferred to and held by the CIA for five months in a prison cell in Afghanistan, where he was tortured. When it was discovered the CIA had the wrong man, he was returned to the Balkans – dumped on the side of an abandoned road in Albania with no apology or attempt to return him to a place where he could return easily to the world he had lost. Like Arar, his attempt to get his day in court was preempted by the state secrets privilege.

Two state secrets cases involving alleged terrorism and surveillance were before the Supreme Court in 2021 and 2022. That of Abu Zubaydah is very similar to those of El-Masri and Arar. He is perhaps less sympathetic, as he is alleged to be an associate of Osama bin Laden. He sits in prison at Guantanamo Bay, but before that was held at a CIA “dark site” in Poland where he was tortured. The Polish justice system examined the operation of that site; Zubaydah, as a former victim, wanted the U.S. government to release information to the Poles about his experience at the site. That was refused on the basis of the state secrets defense. The District Court supported his case; this was sustained by the Court of Appeal; but the Supreme Court came down on the side of the government.

The case of Yassir Fazaga and his colleagues is simpler. They are Muslims and claim that the FBI surveilled them simply because of their religion, a violation of their constitutional rights. The court dismissed the case on state secrets grounds. The Court of Appeal reversed part of that decision, but the government asked the Supreme Court to reinstate the state secrets provision and it did, unanimously.

As the ACLU’s Carol Rose put it in a letter to The Boston Globe in 2007 discussing Reynolds, “it appears that the only state secret was government malfeasance.” No one argues that the government should not be able to keep secrets; the issue is whether it can do so by a simple assertion. 

Legislative attempts were made to allow judicial review of the government’s assertions in 2008 and 2009. These never became law.

And now

On May 7, the Donald Trump administration invoked the state secrets privilege in the case of Kilmer Abrego Garcia – one of the people deported to Venezuela on specious reasons. Of course, one wonders whether a state secrets defense is feasible after the two-time public release of Yemen attack plans by secretary of defense Pete Hegseth and other officials.

I had hoped that Elon Musk’s claimed focus on uprooting, slashing and burning government fraud would lead him to uproot the fraud from 1953, rendering the state secrets privilege null and void. That would have been a public service – but now that the administration is sheltering behind the state secrets privilege, its abolition seems unlikely.

Martin G. Evans is a writer in Cambridge whose contributions on managerial and political issues have appeared in The Boston Globe, Cambridge Chronicle, MetroWest Daily News, Providence Journal, Toronto Star, Globe and Mail of Toronto, National Post of Toronto and the former Toronto Financial Post. He has taught at the Rotman School of Management at the University of Toronto, London Business School, George Mason University, Rutgers University and the Harvard School of Public Health.

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