Last month, the Supreme Court heard arguments in yet another state secrets case, that one about whether the government could invoke national security to block testimony by two C.I.A. contractors who were instrumental in the brutal interrogations of the detainee known as Abu Zubaydah, who was waterboarded more than 60 times and is being held without charge at Guantánamo Bay.
The state secrets privilege has existed in some form since the early 19th century, its modern use, and the rules governing its invocation, derive from the landmark Supreme Court case United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the widows of three civilians who died in the crash of a military plane in Georgia filed a wrongful death action against the government. In response to their request for the accident report, the government insisted that the report could not be disclosed because it contained information about secret military equipment that was being tested aboard the aircraft during the fatal flight. When the accident report was finally declassified in 2004, it contained no details whatsoever about secret equipment. The government’s true motivation in asserting the state secrets privilege was to cover up its own negligence (emphasis added).