The United States Supreme Court recently decided a case involving a man nearly tortured to death at the hands of the United States government. For years, the executive branch made pronouncements that it must keep information from litigants due to state secrets. The Court has always scrutinized these pronouncements. Until now. In the Zubaydah case, the Court dismissed a torture survivor’s quest for justice. But it did not stop there. The opinion followed years of cases dismissed based on the state secrets privilege and effectively announced that the courts will not review claims made by the executive in certain situations. Despite the compelling needs of the litigant, the Court instead walked in lockstep with the executive branch and dismissed the claim entirely. This action is akin to the invocation of the Crown Privilege as it existed in England from the 15th Century until 1968. This decision will undoubtedly cause executive branch overreach. Without the judicial check on the unilateral actions of the Central Intelligence Agency and other secretive departments within our government, abuse will continue. Americans require a transparent view of their government for effective democracy. The State Secrets Protection Act previously introduced in Congress is a critical fix to remedy the Court’s acquiescence to executive branch decision making.
