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Column: In Orange County case, the U.S. is hiding behind claims of ‘state secrets’

The front of the U.S. Supreme Court building in Washington.
The U.S. Supreme Court will weigh in on the controversial “state secrets privilege.”
(Associated Press)

In 2006, the Los Angeles office of the FBI hired Craig Monteilh to infiltrate several Orange County mosques.

As a paid informant working under a false name, his job was to collect information on Muslims who attended morning prayers or held leadership positions or seemed especially religious. For over a year, Monteilh gathered phone numbers and emails of innocent U.S. Muslims and secretly recorded hundreds of hours of video and audio footage, including private conversations, religious lectures and discussion groups.

When it all came out, as it finally did, three of the people he had surveilled sued the FBI, arguing that the government had violated their privacy rights and discriminated against them on the basis of their religion.

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But 10 years after they filed suit, the case still hasn’t gone to trial.

In fact, there’s no guarantee that it ever will. It’s perfectly possible that no one will be held accountable for what certainly seem like clear-cut violations of the U.S. Constitution.

The reason the case has been held up is that the government adamantly insists that holding a full trial would require it to divulge sensitive counterterrorism-related secrets. To avoid that, prosecutors invoked what’s known as the “state secrets privilege,” a rule under which evidence must be excluded — and sometimes an entire case dismissed — if its disclosure would pose a “reasonable danger” to national security.

In this case, a district court judge accepted the government’s argument and summarily tossed out all but one of the plaintiffs’ 11 claims. An appeals court disagreed and revived the case. Last month, the Supreme Court announced that it would weigh in.

It’s true that the government needs to be able to keep some things secret in its intelligence operations and other sensitive work.

But the state secrets privilege is easily abused. The privilege was invoked repeatedly in the years after 9/11 in war-on-terror cases, especially during the George W. Bush administration but on into the Obama years as well. Here are two examples: Neither Khaled El-Masri, who was abducted and detained at a secret CIA prison in Afghanistan, nor Maher Arar, who was held in Syria and tortured, ever got his day in court, because the government got the cases thrown out on state secrets grounds.

Over the years the state secrets privilege was transformed from a last-resort, narrowly applied rule of evidence into a virtual grant of immunity for the government. Oh, we can’t possibly talk about whether we tortured those people, the government is able to say. Or whether we tried to assassinate them. Or whether we violated their constitutional rights.

Too often the privilege seemed to be used to shield government from revelations of embarrassing behavior or illegal conduct. Too often judges defer pusillanimously to prosecutors.

In the Orange County case — known as FBI vs. Fazaga — Atty. Gen. Eric H. Holder Jr. filed a declaration back in 2011 saying that in order to defend itself, the government would have to disclose the identities of the subjects of the investigation, the reason for its existence and some of the sources and methods used. Doing so would cause “significant harm” to national security, he said.

Is that true? Is it reasonable? Who knows! Even lawyers for the three plaintiffs haven’t been able to see the evidence itself. Most likely, neither have the judges.

Surely the government’s need to keep secrets must be balanced against the obligation in a democracy to hold officials accountable for their misbehavior.

There are ways to allow such cases to go forward while protecting secret evidence. The judge can consider the disputed classified evidence in camera, with the press and public excluded. Lawyers can be vetted, then provided with the necessary security clearances to handle classified information. Sensitive documents can be redacted. President Obama’s Justice Department imposed some voluntary limitations but didn’t go far enough.

“Our position has always been that the state secrets privilege has to have limits because otherwise it works as a blank check for government abuse,” said Ahilan Arulanantham, the UCLA law professor who is the lead lawyer in the case.

It appears that the government has been using the privilege less frequently in recent years than at the height of the war on terror. But restrictions from the court or Congress are still necessary.

The particular issue before the Supreme Court now is whether the lower court judge should have rejected the prosecutors’ secrecy arguments and allowed the case to move forward under the rules of the Foreign Intelligence Surveillance Act, a law covering the government’s use of secret information related to electronic surveillance.

But I’d like to see the justices opine more broadly on how the state secrets privilege has been abused, and what can be done about it. (Whether the right-leaning Supreme Court will do that is, to say the least, uncertain. In its upcoming session, it has two state secrets cases to consider.)

And here’s one final piece of history: The state secrets privilege was first enunciated by the U.S. Supreme Court in a 1953 case known as U.S. vs. Reynolds, involving the crash of a government B-29. Three civilian engineers were killed, and their widows sued the government. Among other things, they wanted to see the accident report. The Supreme Court agreed that the report could be withheld because it contained “military secrets” whose disclosure would endanger national security. Years later the Los Angeles Times reported that no secret information was contained in the report — and that the government may have been seeking to cover up its own negligence and maintenance failures.

In a land of laws, where a transparent judicial system is supposed to guarantee access to justice, the state secrets privilege needs to be brought under control.

@Nick_Goldberg


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