The case brought by New York Times columnist considers the doctrine of state secrets one of the most controversial practices in modern law. It also brought up the issue of discrimination, which is concealed by the pretext of maintaining national security (Trenga, 2018). Furthermore, even in non-judicial cases, the availability of confidential material might obscure the historical facts and the culpability of those involved (Liptak, 2021). In my opinion, such prerogatives, especially when combined with the lack of any effective control over national authorities’ decisions to classify or declassify information, make the state secrets doctrine an appealing means of concealing the truth about discrimination crimes and gross human rights violations. Moreover, it grants impunity to government officials responsible for such violations.
Every administration since World War II has invoked privileges associated with state secrets, while litigation concerning sensitive government material is expected to continue for the foreseeable future. For instance, during World War II, U.S. officials used secrecy to conceal the existence and functioning of a Japanese covert biochemical warfare program (Sinnar, 2018). In my opinion, the War on Terror prepared the door for more secret intelligence material to be used as evidence in prosecutions against suspects based on their religion and ethnicity rather than evidence, which turns it into the issue of discrimination. This, in turn, led to various discriminative acts based on race and religion. Muslims and Arabs have been targeted in various cases (F.B.I. v. Fazagi), compromising their human rights based on suspicion, not least because of their religion and ethnicity.
It also goes beyond security issues, and general mistrust is growing in society despite such documents as the Civil Rights Act of 1964. It states that “It shall be an unlawful employment practice… to refuse to hire or to discharge or otherwise to discriminate against any individual… because of such individuals race, color, religion, sex, or national origin.” (Act, 1964). However, as in the F.B.I. v. Fazagi case, Muslim people were subjects of surveillance even though the aforementioned document clearly states against such discrimination.
Experts’ opinion on this multifaceted issue is far from being monolithic. It is usually divided between advocates of the prevalence of national security issues on the rule of law and human rights advocates. For the latter, a vital step to reform the state secrets doctrine can assure a level playing field in the courts and the prospect of remedy for those who allege grave abuses of civil rights and freedoms. The misuse of the state secrets doctrine can lead to discrimination, including the right to access information held by the state, the right to a fair trial, the right to an effective remedy, and the right to truth in cases of serious human rights violations (Trenga, 2018). In order to overcome this issue, the advocation for human rights controlling committees has increased in recent years; however, the need for state reform is still acute.
For the former, national security is the main priority, and the misuse of human rights (including discrimination) is the least price that can be paid. It is still an ongoing debate on how many detainees of Guantanamo Bay and other prisons are ordinary people not connected to global terrorism or how many Arabs and Muslims were denied employment or entrance to the country based on their religion. Thus, the state secrets doctrine still remains one of the most controversial practices. The latest events (such as F.B.I. v. Fazagi) show that despite the growing concerns about the misuse of this principle, its invocation does not seem to diminish. It has become one of the cornerstones of U.S. policy, and the question of whether it is for the better or not is an open one.
References
Act, C. R. (1964). Civil Rights Act of 1964. Title VII, Equal Employment Opportunities.
Liptak, A. (2021). Supreme Court Weighs Case Against F.B.I. for Spying on Muslims. New York Times. Web.
Trenga, A. J. (2018). What Judges Say and Do in Deciding National Security Cases: The Example of the State Secrets Privilege. Harv. Nat’l Sec. J., 9, 1.
Sinnar, S. (2018). Procedural Experimentation and National Security in the Courts. Calif. L. Rev., 106, 991.