Biden's Legacy: Enhancing The 'State Secrets Privilege' To Protect The National Security State

Editor's Note: The following is the second in a series of articles on President Joe Biden's legacy when it comes to press freedom, whistleblowing, and government secrecy. The series began in November and will be published from now until January.

Abu Zubaydah, a high-profile detainee at Guantanamo Bay, was tortured by the CIA. He attempted to subpoena James Mitchell and Bruce Jessen, both architects of the agency’s torture program who interrogated him at a black site in Poland. However, the CIA invoked the “state secrets privilege” to block Zubaydah from seeking testimony that could be used in a Polish criminal investigation. 

The case involving the state secrets privilege was eventually heard by the United States Supreme Court, and the court not only ruled in favor of the CIA but also expanded the privilege. On March 3, 2022, the court issued a 7-2 opinion that declared that U.S. “national security” interests would be harmed if the case proceeded—despite acknowledging that some of the information sought was already public.

Although it was President Donald Trump’s Justice Department (DOJ) that initially defended the CIA, President Joe Biden was in the White House when the Supreme Court issued this precedent-setting decision. In October 2021, Biden DOJ lawyers went before the Supreme Court to argue that the Ninth Circuit Court of Appeals had erred when it determined that the state secrets privilege did not cover all of the information sought by Zubaydah.

The Zubaydah case was emblematic of the Biden administration’s approach to several lawsuits in which individuals or organizations attempted to challenge abuses of power or hold security agencies accountable.

A handful of U.S. senators sent a letter [PDF] to Attorney General Merrick Garland in October 2021 asking about the DOJ's failure to submit "periodic reports" to Congress regarding the use of the state secrets privilege. Under Obama, Attorney General Eric Holder had promised this level of accountability. Yet only two reports had been shared with senators and representatives, and it's unclear if further reports have ever been issued.

The state secrets privilege stems from a 1953 case known as U.S. v. Reynolds. After a military plane crash, the government refused to tell the victims’ families how their loved ones had died because it would reveal “secrets.” But decades later, declassified U.S. Air Force documents sparked a lawsuit [PDF] by the families. 

“The government concealed its fraud for decades, holding the accident reports and witness statements as ‘classified materials’ until the 1990s, even though they contained no secrets and had no conceivable further utility,” the families alleged. “Indeed, that was the Air Force’s purpose in classifying them—to bury them so deep and so long that no one would find them.”

Similarly, the CIA maintains secrets about the agency’s rendition, detention, and torture program to keep certain files buried and hopefully ensure that the public forgets what the agency did. 

Justices Sonia Sotomayor and Neil Gorsuch dissented [PDF] against the majority’s decision. Gorsuch, who was nominated by Trump, wrote, “The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them.”

“Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the Court acquiesces in that request,” Gorsuch added. “Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret.”

The world knows that Poland hosted a CIA black site, but the Biden administration (taking the position of the Trump administration) fought for secrecy because officials did not want the CIA to face any constraints when working through “the dark side,” as Vice President Dick Cheney encouraged after the September 11th attacks. 

Protecting The FBI After It Spied On Muslim Americans

A day after the Supreme Court decision in the Zubaydah case, the nation’s highest court also unanimously ruled [PDF] that the FBI could invoke the state secrets privilege to prevent the disclosure of information on the bureau's illegal surveillance of Muslim Americans.

As Trevor Aaronson reported for The Intercept, “In 2006 and 2007, the FBI had an informant named Craig Monteilh “pose as a Muslim convert and infiltrate mosques throughout Southern California, home to an estimated half-million Muslims, a diverse set of Islamic worshippers living in [the] shadows of Disneyland in sprawling Orange County.”

“Monteilh spent the next 18 months secretly recording conversations with unsuspecting Muslims and providing intelligence back to the FBI about scores of men and women whose only apparent transgression was practicing their religion,” Aaronson added. “The name of the FBI program, Operation Flex, came from Monteilh being a lifelong gym rat. By offering his services as a fitness instructor to Muslim men, the FBI figured, Monteilh could build trust and identify potential security threats.”

After a “falling out” with the FBI, Monteilh blew the whistle on Operation Flex and provided testimony for a lawsuit brought by the American Civil Liberties Union (ACLU) in 2011. The Ninth Circuit Court of Appeals decided that the Foreign Intelligence Surveillance Act (FISA) “displaced” the state secrets privilege and afforded plaintiffs a process for litigation that involved sensitive security information. The Supreme Court reversed the decision.

While the Supreme Court’s ruling was narrow, its impact was substantial. The decision foreclosed the ability of Muslim Americans to pursue justice against the FBI, which had violated their privacy rights and rights to freedom of religion.

Attorney General Eric Holder was the first to defend the invocation of the privilege. Under President Donald Trump, Attorney General Bill Barr appealed to the Supreme Court, and then Attorney General Merrick Garland finished the task—denying Muslim Americans their day in court. 

Ending A Lawsuit Against Mass Surveillance

In the administration’s first year, the Biden Justice Department defended a prior invocation of the state secrets privilege in a case that challenged “Upstream” surveillance by the National Security Agency (NSA), which was exposed by NSA whistleblower Edward Snowden. (Upstream monitors Americans’ internet communications with anyone outside of the United States and falls under Section 702 of the Foreign Intelligence Surveillance Act.)

The lawsuit was filed in 2015 by the ACLU on behalf of Wikimedia Foundation, the nonprofit organization that hosts Wikipedia. After the Fourth Circuit Court of Appeals determined in 2017 that the case could move forward, the Trump DOJ turned to the state secrets privilege to protect the surveillance program. That worked, and when the ACLU appealed, the Fourth Circuit ruled in favor of government secrecy. 

After the ACLU asked the appeals court to reconsider their decision, the Biden DOJ in December 2021 [PDF] opposed this request. Nonetheless, DOJ attorneys supported the ACLU as it urged the court to wait until the Supreme Court ruled on the state secrets privilege in the Fazaga case. 

The Biden DOJ prevailed in the Fazaga case in early March 2022, and weeks later, the appeals court refused to rehear the Wikimedia case involving mass surveillance. (The Supreme Court also denied a petition to consider the case.) 

Both the Fazaga and Wikimedia cases strengthened the government’s ability to shut down legal challenges to national security programs that trample on Americans’ constitutional rights. (Fazaga also brought an end to the Electronic Frontier Foundation’s “flagship” case known as Jewel v. NSA, which was first filed in 2008 to stop Upstream surveillance through AT&T facilities.)

Without having to worry about any meaningful effort in the courts to curb surveillance powers, the Biden administration backed legislation in 2024 that was dubbed “PATRIOT Act 2.0.” It passed in Congress, and as Muslim Advocates described, the bill contained a “Spy Draft” provision that allowed the government to “secretly force Americans and businesses of any size, even landlords, to engage in warrantless spying on the government’s behalf—including providing direct access to communications networks without court review.

“In ramming through an expansion of an already notorious, warrantless surveillance program, the Biden Administration ignore[d] clear, longstanding warnings from Muslims and many other communities,” Muslim Advocates senior policy counsel Sumayyah Waheed stated. 

One measure in this bill contained an “extreme vetting” provision that could be used to deport immigrants. Waheed added, “The same surveillance apparatus that already watches, profiles and rounds up communities of color has now been granted even more unchecked surveillance power to target all people in the U.S., especially immigrants.”

Helping The CIA Avoid Accountability For Spying On Americans

In April 2024, CIA Director William Burns invoked the state secrets privilege in a lawsuit filed by four Americans: Margaret Ratner Kunstler, a civil rights activist and human rights attorney; Deborah Hrbek, a media lawyer who represented Assange or WikiLeaks; journalist John Goetz, who worked for Der Spiegel when the German media organization first partnered with WikiLeaks; and journalist Charles Glass, who wrote articles on Assange for The Intercept.

The lawsuit alleged that the CIA and CIA Director Mike Pompeo directed UC Global, a Spanish security company, to carry out a spying operation against Assange that violated their privacy. UC Global allegedly copied the contents of their electronic devices and provided the data to the CIA.

As The Dissenter reported, after the lawsuit survived a motion to dismiss, the government moved to entirely shut down the case by claiming that “serious” and “exceptionally grave” damage to U.S. “national security” could occur if allowed to proceed.

Remarkably, U.S. Judge John Koeltl had determined in December 2023 that the four Americans had grounds to sue the CIA for violating their “reasonable expectation of privacy” under the Fourth Amendment of the U.S. Constitution. A prior case known as Amnesty v. Clapper involving the “legality of the bulk telephone metadata collection program” operated by the NSA helped Koeltl decide that the Americans had standing to pursue their claims.

“If the government’s search (of their conversations and electronic devices) and seizure (of the contents of their electronic devices) were unlawful, the plaintiffs have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling,” Koeltl declared.

But during the months that followed, the four Americans and their attorney Richard Roth had to deal with the CIA “hiding” behind the state secrets privilege instead of rebutting the accusations in their complaint. And as of December, the case had not been officially dismissed though it was stagnant.

Assange, who was the first journalist to be indicted and prosecuted under the U.S. Espionage act, was released from the Belmarsh high-security prison in London after accepting a plea deal with the Biden Justice Department. The effort to extradite Assange and put the WikiLeaks founder on trial essentially collapsed.

If the government wanted, it could not point to the unprecedented prosecution to justify shielding the CIA because the legal saga had ended. 

Making 9/11 Families Wait For The Truth

A group of victims’ families, first responders, and survivors of the September 11th attacks had long fought for the disclosure of records, particularly from the FBI, as part of a lawsuit against the Kingdom of Saudi Arabia for their alleged role in the tragedy. But in 2020, Attorney General Bill Barr invoked “state secrets” to prevent the release of this information. 

Separately, in 2019, President Donald Trump met with 9/11 families and promised to make FBI files public. “He looked us in the eye on 9/11, he shook our hands in the White House and said, ‘I’m going to help you — it’s done,’” Brett Eagleson, a banker whose father was killed in the World Trade Center, told ProPublica. “I think the 9/11 families have lost all hope that the president is going to step up and do the right thing. He’s too beholden to the Saudis.”

The 9/11 families directed their righteous content at Biden after he was elected, urging him to stay away from “20th-anniversary events in New York and Shanksville, Pennsylvania, and at the Pentagon” unless he released documents that they believed would implicate Saudi officials. They were upset that despite campaign promises Biden had “ignored their letters and requests.” 

“Through multiple administrations, the Department of Justice and the FBI have actively sought to keep this information secret and prevent the American people from learning the full truth about the 9/11 attacks,” the group declared, demanding that they be allowed to see “supporting evidence” from the FBI’s investigation into the 9/11 hijackers’ alleged links to the Saudi government that was completed in 2016. 

On August 9, 2021, Biden and Attorney General Merrick Garland departed from Trump and President Barack Obama. They reviewed documents and finally declassified hundreds of pages of material. Particularly, Biden released a 16-page FBI report that showed two Saudis had closer ties with the hijackers than previously revealed. The FBI even had evidence that Omar one of the men, Omar al-Bayoumi, was a Saudi spy.

But despite Biden’s support for a fresh review of secret files, by August 2023, the 9/11 families were once again frustrated. “After more than two decades of our search for truth and accountability, we find ourselves again, inexplicably, thwarted by our own government,” the families declared, according to POLITICO. They were referring to their struggle to obtain information that Biden had “directed his government to declassify months after taking office.”

It is not entirely clear what secret files the FBI or other agencies may still have in their possession that could further expose the role of Saudi government-linked operatives in the 9/11 attacks. Litigation is still unfolding in New York, and new evidence has become known as part of the case. 

For the first article in The Dissenter's series on "Biden's Legacy," go here.