A New York Times editorial on March 10th details the recent decision by the United States Court of Appeals for the Fourth Circuit to throw out a suit by Khaled el-Masri. El-Masri, a German citizen, claims he was arrested and sent to Afghanistan, where he was allegedly tortured. He brought suit against the CIA, charging violations of both the Constitution and international law. The judges of the Fourth Circuit however, ruled that the "very subject matter" of the case made it too secret to move forward.
This decision brings about an interesting question concerning the relationship between the state and the individual. Depending on your philosophical background, you may have a different view of what constitutes the state, but I favor an atomistic view. The state, in this view, is merely a collection of individuals. There is a certain convenience in saying 'the state's interests' or 'the state's well-being' but this is a linguistic nicety, not a logical position. The state can have no interests or motivations beyond those of the individuals that make it up.
What the Fourth Circuit has basically ruled, then, is that in certain matters, the interests, rights, and motivations of one individual (or individuals) trump the interests, rights, and motivations of another. This view is the antithesis of "rule by law not men", for it implies that all are not equal before the law. Or, to put it another way, the court has effectively stated that in some cases, laws may be violated on the basis of what one group of people has decided to be important or necessary for the rest. This logic has troubling consequences. Imagine a state composed of four people. One of the citizens comprises the government and the other three are non-government members. Would it be desirable to have the member of the government declare that one of other citizens must be imprisoned and tortured for the good of the state--which is nothing more than the good of the four individuals that comprise it? Surely the citizen chosen to be tortured would not find the action for the good of the state, for he is a member of the state. And if the other two citizens consent, they must do so with the understanding that at some point, it may be in the interests of the state to imprison them. Governments that operate in accord with the principle of 'acting in the good of the state regardless of law' are effectively arbitrary.
Certainly this is not to say that all information members of the government are privy to should be made available to all citizens. However, there must be some way for individuals to seek redress when the government acts in an arbitrary way contrary to law.
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Your question seems to regard the social contract. Does our social contract value protecting the majority (national security) over the minority (right to a fair trial) or vice versa? It seems throughout American history, protection of the majority has been preferred during times of war. No doubt this administration abuses the power that comes with the threat of war. But if we take your hypothetical state of four people as a representation of the current American public, one could argue that yes, indeed those two people would agree to imprison the third in the name of "national security." Or maybe the pendulum has finally drifted too far in that direction and protection of civil liberties has resurfaced. This amorphous entity called the state has been given the power to protect us from the state of nature, and rational people would disagree about whether that means protecting the many or protecting the few in anticipation of members of the many becoming members of the few in the future. Another important question is who is included in our social contract? Is a German citizen included in the American social contract, or is it a social contract made by all humans? If it is the latter, I must ask the question, why the arbitrary distinction of homo sapien? What is it about being human that makes one part of the social contract - rationality, the ability to communicate? Are babies and the mentally disabled therefore not part of the social contract? If they are, why are the animals who have higher reasoning and communication abilities not part of it? But I digress...
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