The Supreme Court case of United States v. Zubaydah reached its final decision on March 3, 2022–a landmark decision on the issue of the state secrets privilege. Abu Zubaydah—a suspected al Qaeda lieutenant with information on future attacks–was allegedly held in a Central Intelligence Agency detention center in Poland. During this time, Zubaydah was subjected to “enhanced interrogation” techniques and in 2010 he filed a criminal complaint against the officials involved. The United States has since denied information and official acknowledgment of any connection on the grounds that such release would jeopardize national security. Zubaydah’s case was taken to court, where an important delineation was made by the ninth circuit court explaining that the state secret privilege did not extend to public information. This ruling, however, was overturned by the Supreme Court, affirming the precedent of United States v. Reynolds which held that the federal government is allowed to “resist court-ordered disclosure of information during litigation if there is a reasonable danger that such disclosure would harm the national security of the United States.” According to Claire Finkelstein of the Bloomberg Law Review, this case shows how the state secret privilege undermines democracy on account of its circular argument and dependency on vague definitions.
From the ruling in United States v. Zubaydah, an important question on democratic integrity is raised: is there a place for immunity in democratic government? As much as democracy relies on transparency and accountability to build trust and legitimacy, protection of the body politic’s civil liberties is foremostly the role of the government [1]. This places the state secrets privilege in a precarious position between several requisites of democracy. The distinction must be made, however, that as much as the doctrine serves as an efficient mechanism to protect national security, it degrades the integrity of constitutional checks and balances on the executive. United States v. Zubaydah stands as a pivotal ruling exposing the unconstitutionality of the state secrets privilege on two accounts: the first being that the doctrine promotes abuse of power by the executive branch; and the second that it serves to hide the United States government action that explicitly disregards individual constitutional rights.
Huq and Ginsberg illustrate the importance of constitutional checks and balances in creating obstacles for authoritarian leaders and sustaining democratic institutions [2]. These obstacles, however, remain contingent on the decisions of the incumbents in the legislature and courts. The judicial branch poses a unique opportunity for restricting executive power as a body created to hold offenders accountable for their actions in all circumstances. Contrarily, the judicial branch also poses the challenge of potentially warranting impunity [3]. On this issue of the state’s secret privilege, this distinction becomes clear through the doctrine’s circularity. A court must deem the use of the privilege appropriate through preliminary review; however, little information can be revealed on account of the evidence’s sensitive nature. When trying a case that potentially involves state secrets, even though plaintiffs bring convincing evidence mutually exclusive from the nationally sensitive material, they are often dismissed on account of the preliminary review. This circular issue characterizes the pro-executive lean in deciding the outcome of these cases where the doctrine incentivizes withholding information, and the United States v. Zubaydah verdict upheld and expanded the realm of neutral information.
Executive abuse of the doctrine is not only a plausible prediction but one with a precedent of being employed in situations that degrade democratic institutions. The state secrets privilege is overwhelmingly used where there is an incentive to prevent disclosure of questionable, embarrassing, or unlawful conduct on behalf of the government. Using United States v. Reynolds or United States v. Zubaydah as examples, both cases display criminal activity, and both with verdicts that do not reflect accountability. Dismissing cases that are direct violations of civil and human rights changes the state secrets doctrine into an almost-impermeable immunity doctrine. The use of this doctrine then proves to be a court weakening institution that, as justice Gorsuch affirms, could be considered more appropriate in a monarchy than democracy.
Rulings such as the United States v. Zubaydah decision evinces the degradation of institutions that might challenge the executive, suggesting democratic backsliding. Rulings such as the United States v. Zubaydah decision evinces the degradation of institutions that might challenge the executive, suggesting democratic backsliding that could promote future executive aggrandizement [4]. The state secrets privilege as it stands presents an open door to hopeful authoritarians to suppress the check of the courts on executive power. Along with this, the privilege formalizes the potential, following Ziblatt and Levitsky’s criteria, for executives to curtail the civil liberties and rights of their opposition [5]. Although some immunity in select cases may be helpful to democratic stability, the current state secrets privilege displays the harmful effects of lacking accountability and transparency in American democracy.
[1] Dahl, Robert. On Democracy. Yale University Press, 1998. [2] Ginsburg, Tom, and Aziz Z. Huq. How to Lose a Constitutional Democracy. U.C.L.A. Law Review, 2020. [3] Ginsburg, Tom, and Aziz Z. Huq. [4] Bermeo, Nancy. “On Democratic Backsliding.” Journal of Democracy 27, no. 1 (January 2016): 5-19. [5] Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing Group, 2018).
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