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In February 2000, Judith Loether, a daughter of one of the three civilians killed in the 1948 B-29 explosion, discovered the government’s once-secret accident report for the incident on the Internet. Loether had been seven weeks old when her father died but been told by her mother what was known of her father’s death and the unsuccessful efforts to find out what had truly happened. When Loether read the accident report she was stunned. There were no national security secrets whatsoever, rather there was glaringly clear evidence of the government’s negligence resulting in her father’s death. Loether shared this information with the families of the other civilian engineers who had been killed in the incident and they joined together in a legal action to overturn Reynolds, raising the fact that the executive branch of the government had misled the Supreme Court, not to mention the parties to the earlier lawsuit.

Lou Fisher looked closely at the state secrets privilege in his book In The Name of National Security, as well as in follow-up articles when the Reynolds case was litigated after it was discovered, decades after the fact, that the government had literally defrauded the Supreme Court in Reynolds, e.g., “The State Secrets Privilege: Relying on Reynolds.” The Reynolds ruling emerged from litigation initiated by the widows of three civilian engineers who died in a midair explosion of a B-29 bomber on October 6, 1948. The government refused to provide the widows with the government’s accident report. On March 9, 1953, the Supreme Court created the state secrets privilege when agreeing the accident report did not have to be produced since the government claimed it contained national security secrets. In fact, none of the federal judges in the lower courts, nor the justices on the Supreme Court, were allowed to read the report.

Lowell states in his letter: “By relying solely upon ex parte submissions to justify its invocation of the state secrets privilege, especially in the unprecedented circumstance of private party litigation without an obvious government interest, the Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment. “ Lowell further claims that in “the typical state secrets case, the Government will simultaneously file both a sealed declaration and a detailed public declaration.” (Emphasis in Lowell’s letter.) To bolster this contention, he provided the court with an example, and offered to provide additional examples if so requested.

The Justice Department’s memorandum of law accompanying its motion to intervene states that once the state secrets privilege has been asserted “by the head of the department with control over the matter in question . . . the scope of judicial review is quite narrow.” Quoting from the U.S. Supreme Court ruling establishing this privilege in 1953, U.S. v. Reynolds, the brief adds: “the sole determination for the court is whether, ‘from all the circumstances of the case . . . there is a reasonable danger that compulsion of the evidence will expose military [or other] matters which, in the interest of national security, should not be divulged.’”In short, all the Justice Department need claim is the magic phrase—”state secrets”—after assuring the court that the head of department or agency involved has personally decided it is information that cannot be released. That ends the matter. This is what has made this privilege so controversial, not to mention dubious. Indeed, invocation by the executive branch effectively removes the question from judicial determination, and the information underlying the decision is not even provided to the court.

As Fisher and other scholars note, there is much more room under the Reynolds ruling for the court to take a hard look at the evidence when the government claims state secrets than has been common practice. Fisher reminds: “The state secrets privilege is qualified, not absolute. Otherwise there is no adversary process in court, no exercise of judicial independence over what evidence is needed, and no fairness accorded to private litigants who challenge the government . . . . There is no justification in law or history for a court to acquiesce to the accuracy of affidavits, statements, and declarations submitted by the executive branch.” Indeed, he noted to do so is contrary to our constitutional system of checks and balances.

Time to Reexamine Blind Adherence to the State Secrets PrivilegeIn responding to the government’s move to intervene, invoke state secrets, and dismiss the Restis lawsuit, plaintiffs’ attorney Abbe Lowell sent a letter to Judge Edgardo Ramos, the presiding judge on the case on September 17, 2014, contesting the Department of Justice’s ex parte filings, and requesting that Judge Ramos “order the Government to file a public declaration in support of its filing that will enable Plaintiffs to meaningfully respond.” Lowell also suggested as an alternative that he “presently holds more than sufficient security clearances to be given access to the ex parte submission,” and the court could do here as in other national security cases, and issue a protective order that the information not be shared with anyone. While Lowell does not so state, he is in effect taking on the existing state secrets privilege procedure where only the government knows what is being withheld and why, and he is taking on Reynolds.

To make a long story short, the Supreme Court was more interested in the finality of their decisions than the fraud that had been perpetrated upon them. They rejected the direct appeal, and efforts to relegate the case through the lower courts failed. As Fisher notes, the Court ruled in Reynolds based on “vapors and allusions,” rather than facts and evidence, and today it is clear that when it uncritically accepted the government’s word, the Court abdicated its duty to protect the ability of each party to present its case fairly, not to mention it left the matter under the control of a “self-interested executive” branch.

Lowell explains it is not clear—and suggests the government is similarly unclear in having earlier suggested a “law enforcement privilege”—as to why the state secrets privilege is being invoked, and argues this case can be tried without exposing government secrets. Citing the Fitzgerald ruling, Lowell points out dismissal is appropriate “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material is dismissal warranted.”

No telling how Judge Ramos will rule, and the government has a remarkable record of prevailing with the deeply flawed state secrets privilege. But Lowell’s letter appears to say, between the lines, that he has a client who is prepared to test this dubious privilege and the government’s use of it in this case if Judge Ramos dismisses this lawsuit. The U.S. Court of Appeals for the Second Circuit, where that ruling would be reviewed, sees itself every bit the intellectual equal of the U.S. Supreme Court and it is uniquely qualified to give this dubious privilege and the Reynolds holding a reexamination. It is long past time this be done.

Next up was the lower court’s dismissal of the case on the grounds that the plaintiffs had failed to state a claim. The plaintiffs had alleged that the NYPD’s surveillance program was facially discriminatory because it targeted Muslims. In response, the City had demanded information about “when, by whom, and how the policy was enacted and where it was written down.” But the court found the plaintiffs had met their burden, alleging specifics about the program “including when it was conceived (January 2002), where the City implemented it (in the New York Metropolitan area with a focus on New Jersey), and why it has been employed because of the belief ‘that Muslim religious identity … is a permissible proxy for criminality.’” In other words, the plaintiffs had sufficiently alleged a facially discriminatory policy even when they couldn’t identify a piece of paper on which it was memorialized. For civil rights lawyers concerned that cases like Iqbal and Twombly are closing off avenues for civil rights litigation, the Third Circuit holding provides some comfort. A key issue in the case was the NYPD’s intent in monitoring Muslims. The City had successfully argued below that it “could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.” Its motive, the City argued, was counterterrorism, not treating Muslims differently. The problem with this argument, the Third Circuit explained, was that the City was mixing up “intent” and “motive.” The intent inquiry focuses on whether a person acts intentionally rather than accidentally, while the motive inquiry focuses on why a person acts. “[E]ven if NYPD officers were subjectively motivated by a legitimate law enforcement purpose … they’ve intentionally discriminated if they wouldn’t have surveilled Plaintiffs had they not been Muslim,” the court concluded.

The court then turned to whether, assuming differential treatment, the NYPD program was nevertheless justified on security or public safety grounds. It began its inquiry by examining the appropriate standard of review, concluding that it was appropriate to apply heightened scrutiny to religion-based classifications under the equal protection clause rather than simply to examine whether the City had a rational basis for its actions. Even though religious affiliation, unlike race, is capable of being changed, the Third Circuit agreed with many of its sister courts that it was of such fundamental importance that people should not be required to change their faith.

New York City had argued that the surveillance program met the heightened scrutiny standard because it was necessary to meet the threat of terrorism. In support, the City put forward its oft-repeated argument that a “comprehensive understanding of the makeup of the community would help the NYPD figure out where to look — and where not to look — in the event it received information that an Islamist radicalized to violence may be secreting himself in New Jersey.” The court was not convinced that this was a sufficiently close fit with the goal, finding that the City failed to meet its burden of rebutting the presumption of unconstitutionality created by plausible allegation of discrimination. Harking back to the World War II internment of Japanese Americans

the Third Circuit cautioned: No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights … Given that “unconditional deference to [the] government[’s] … invocation of ‘emergency’ … has a lamentable place in our history,” the past should not preface yet again bending our constitutional principles merely because an interest in national security is invoked.

Lastly, the Third Circuit rejected as “threadbare” the City’s argument that plaintiffs First Amendment free exercise and establishment clause claims failed because they did not allege “overt hostility and prejudice.” As with the equal protection claims, it was not necessary for plaintiffs to demonstrate animus. *     *     * In conclusion, the court reminded us that the targeting of Muslims, which has been a leitmotif of US security policy, was not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight — that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.”

Former FBI Division Counsel in Minneapolis Coleen Rowley – who, with Jesselyn Radack, Tom Drake and me, visited Snowden in Russia last October – told me of two legal doctrines established many decades ago: the “exclusionary rule” and the rule regarding the “fruit of the poisonous tree.” These were designed to force over-zealous law enforcement officers to adhere to the Constitution by having judges throw out cases derived from improperly obtained evidence. To evade this rule, law enforcement officials who have been on the receiving end of NSA’s wiretap data must conceal what tipped off an investigation.

Last week a journalist asked me why I thought Congress’ initial outrage – seemingly genuine in some quarters – over bulk collection of citizens’ metadata had pretty much dissipated in just a few months. What started out as a strong bill upholding Fourth Amendment principles ended up much weakened with only a few significant restraints remaining against NSA’s flaunting of the Constitution? Let me be politically incorrect and mention the possibility of blackmail or at least the fear among some politicians that the NSA has collected information on their personal activities that could be transformed into a devastating scandal if leaked at the right moment. Do not blanch before the likelihood that the NSA has the book on each and every member of Congress, including extramarital affairs and political deal-making. We know that NSA has collected such information on foreign diplomats, including at the United Nations in New York, to influence votes on the Iraq War and other issues important to U.S. “national security.”

We also know how the late FBI Director J. Edgar Hoover used much more rudimentary technology a half century ago to develop dossiers on the personal indiscretions of political and ideological opponents. It makes sense that people with access to the NSA’s modern surveillance tools would be sorely tempted to put these new toys to use in support of their own priorities.

We cannot escape some pretty dismal conclusions here. Not only have the Executive and Legislative branches been corrupted by establishing, funding, hiding and promoting unconstitutional surveillance programs for over 12 years, but the Judicial branch has been corrupted, too. The discovery process in criminal cases is now stacked in favor of the government through its devious means for hiding unconstitutional surveillance and using it in ways beyond the narrow declared purpose of thwarting terrorism. Moreover, federal courts at the district, appeals and Supreme Court levels have allowed the government to evade legal accountability by insisting that plaintiffs must be able to prove what often is not provable, that they were surveilled through highly secretive NSA means. And, if the plaintiffs make too much progress, the government can always get a lawsuit thrown out by invoking “state secrets.” The Separation of Powers designed by the Constitution’s Framers to prevent excessive accumulation of power by one of the branches has stopped functioning amid the modern concept of “permanent war” and the unwillingness of all but a few hearty souls to challenge the invocation of “national security.” Plus, the corporate-owned U.S. media, with very few exceptions, is fully complicit.

The concept of a “United Stasi of America,” coined by Pentagon Papers whistleblower Daniel Ellsberg a year ago, has been given real meaning by the unconstitutional behavior and dereliction of duty on the part of both the George W. Bush and Obama administrations. Just days after the first published disclosure from Snowden, Ellsberg underscored that the NSA, FBI and CIA now have surveillance capabilities that East Germany’s Stasi secret police could scarcely have imagined.

Last June, Mathew Schofield of McClatchy conducted an interesting interview of Wolfgang Schmidt, a former lieutenant colonel in the Stasi, in Berlin. With the Snowden revelations beginning to tumble out into the media, Schofield described Schmidt as he pondered the sheer magnitude of domestic spying in the United States.

“So much information, on so many people,” says Schmidt who, at that point, volunteers a stern warning for Schofield and the rest of us: “It is the height of naiveté to think that, once collected, this information won’t be used. This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.”

Take note, those of you who may still feel fearless, those of you with “nothing to hide.”

The Archive appealed the lower court's decision, and with representation from the distinguished firm of Skadden Arps Meagher Slate & Flom, brought the case to the D.C. Circuit, with oral argument in December 2013. The National Coalition for History, including the American Historical Association and other historical and archival professional organizations, joined the case with an amicus curiae brief authored by the Jones Day law firm arguing for release of the volume. Titled "CIA's Internal Investigation of the Bay of Pigs Operation," Volume V apparently contains Pfeiffer's aggressive defense of the CIA against a hard-hitting 1961 internal review, written by the agency's own Inspector General, which held the CIA singularly responsible for the poor assumptions, faulty planning and incompetence that led to the quick defeat of the paramilitary exile brigade by Fidel Castro's military at the Bahia de Cochinos between April 17 and April 20, 1961. The Archive obtained under FOIA and published the IG Report in 1998. The CIA has admitted in court papers that the Pfeiffer study contains "a polemic of recriminations against CIA officers who later criticized the operation," as well as against other Kennedy administration officials who Pfeiffer contended were responsible for this foreign policy disaster. In the dissenting opinion from the D.C. Circuit's 2-1 decision yesterday, Judge Judith Rogers (appointed by Bill Clinton) identified multiple contradictions in the CIA's legal arguments. Judge Rogers pointed out that the CIA had failed to justify why release of Volume V would "lead to public confusion" when CIA had already released Volumes I-IV. She noted that neither the CIA nor the majority court opinion had explained "why release of the draft of Volume V 'would expose an agency's decision making process,'" and discourage future internal deliberations within the CIA's historical office any more than release of the previous four volumes had done.

Prior to yesterday's decision, the Obama administration had bragged that reducing the government's invocation of the b-5 exemption was proof of the impact of the President's Day One commitment to a "presumption of disclosure." Instead, the bureaucracy has actually increased in the last two years its use of the b-5 exemption, which current White House counselor John Podesta once characterized as the "withhold if you want to" exemption. The majority opinion also left two openings for transparency advocates. It invites Congress to set a time limit for applying the b-5 exemption, as Congress has done in the Presidential Records Act. Second, it concludes that any "factual material" contained in the draft should be reachable through Freedom of Information requests.

Netanyahu and the Israeli right-of-center say they want to keep Palestinians homeless and without citizenship rights in a state because they fear a Palestinian state will make claims on Israel and present a security challenge. Netanyahu said Sunday that if Israel relinquished the West Bank it would become a bastion of Muslim radicalism (but West Bankers are substantially more secular than the Jewish population of West Jerusalem).But in fact, Netanyahu and the right are dedicated to Greater Israel, to annexing the West Bank territory and finding a way to expel the Palestinians from it. The Palestinians are not a security challenge– they are like the guard at a bank getting in the way of bank robbers. The bank robbers feel a need to knock him out or kill him, remove him from the scene.

ut it is shameful to have Israel preside over 4 million stateless people forever. This is Apartheid. And Netanyahu has just made Apartheid the official policy of Israel, just as South African leader P.W. Botha dedicated himself to making black South Africans stateless and without the rights of citizenship. The only fig leaf Israel had for its Apartheid was the farce of the “peace process” and a pro forma ritual invocation of a “future Palestinian state.” Now Netanyahu has ripped off the fig leaf and stands naked before the world. Botha was called by his victims the “Great Crocodile.” It would be better epithet for Netanyahu than “Bibi.”

Nasr also advances the jurisprudence surrounding a state’s duty to conduct an effective domestic investigation into torture. The Strasbourg Court noted that Italian courts had conducted a detailed investigation and that the evidence disregarded by Italy’s highest court on grounds of state secrecy had been sufficient to convict the five Italian military intelligence defendants. It further observed that because the evidence inculpating those defendants had been widely available in the press and on the Internet, the court’s invocation of state secrecy doctrine was not only unpersuasive, but designed to grant impunity to the defendants. Further, the Strasbourg Court noted that the Italian government had never sought the extradition of the convicted CIA agents. As result, the court ruled that despite the efforts of Italian investigators and judges, which had identified the responsible individuals and secured their convictions, the domestic proceedings failed to satisfy the procedural requirements of article 3 of the European Convention (prohibiting torture and other ill-treatment), due to the actions of the executive. This ruling is important because it imposes liability not only where a state takes no steps towards a genuine domestic investigation and prosecution (as in El-Masri and Al-Nashiri/Husayn), but also where efforts by a state’s judges and prosecutors are thwarted in the name of state secrecy.

The ECtHR’s rulings on the CIA torture program also highlight the continued absence of accountability in the United States. The US has failed both to conduct an effective criminal investigation of those most responsible for CIA torture and to provide any remedies to victims. In fact, the Obama administration has vigorously opposed the latter at every turn, invoking the same sweeping state secrecy doctrines the ECtHR rejected in El-Masri and Nasr. These rulings will likely catalyze future litigation before the Strasbourg Court and in European domestic courts as well. (Recent actions filed against Germany for its participation in US targeted killings through use of the Ramstein Air Base provide one example of such litigation.) While the ECtHR’s rulings may not spur further efforts in the United States, they reinforce the perception of the United States as an outlier on the important question of accountability for human rights violations.