As it has evolved, the government can invoke the state secrets shield without having to subject the state secret to any kind of judicial review, leading to all sorts of infringements on individual liberties. From James Bovard at antiwar.com:
“State Secrets” is often invoked to give federal agencies a free pass from justice, without having to explain why.
Will federal law enforcement agencies ever be forced to disclose their abuses of American citizens? The Supreme Court could answer that question in its decision on a potentially landmark case it heard last week regarding surveillance of Muslim communities in California. Though the case may be decided on narrow grounds, it involves a legal Pandora’s Box that has spawned and shielded the worst abuses of the post-9/11 era.
Beginning in 2006, the FBI sent Craig Monteilh, a former Drug Enforcement Administration informant, into mosques in southern California to gather evidence against Muslims at worship. His FBI handlers gave Monteilh permission to sleep with Muslim women he targeted and to secretly tape record their pillow talk. He also placed a recording device to covertly tape Muslim therapy sessions. National Public Radio noted the surveillance “yielded no results and proved a huge embarrassment to the bureau” after Monteilh went public in 2012 to denounce his own behavior and the FBI.
Monteilh encouraged mosque members to engage in bombing and other violence. He was part of an army of 15,000 FBI informants recruited after 9/11 who fueled pervasive entrapment operations. Trevor Aaronson, author of The Terror Factory: Inside the FBI’s Manufactured War on Terrorism, estimated that only about 1 percent of the 500 people charged with international terrorism offenses in the decade after 9/11 were bona fide threats. Thirty times as many were induced by the FBI to behave in ways that prompted their arrest.
The FBI has been able to trample Americans’ rights and privacy because it shrouds its abuses. The Supreme Court case hinges on the State Secrets doctrine—something that the Court created in a 1953 case involving the cover-up of the crash of a B-29 bomber. The Air Force said that any disclosure of the case would expose vital national security secrets, and the Court deferred to the military. Half a century later, the government declassified the official report which contained no national security secrets but proved that negligence caused the crash.