I have been hearing a lot about the State Secrets Privilege which can be invoked by the Executive Branch of the US Government. I became curious.
From what I can tell, there is no law in existence that defines the State Secrets Privilege, it’s scope, nor powers. It is considered “common law”, arisen as a result of legal precedents resultant from prior court rulings, supporting the desire of the Executive Branch to withhold any information in a trial if the Executive deems that information could damage our national security.
It relies completely upon the word of the Executive. There is no way to determine if, in fact, information withheld could damage national security. It just needs to be invoked.
Although the State Secrets Privilege has been invoked ever since the formation of our country, the Supreme Court of the US experienced it for the first time only in the 1950′s in the case United States v. Reynolds (345 U.S. 1). It wasn’t even called the “State Secrects Privilege” then.
In this case, three widowed women were suing the US for the deaths of their civilian husbands during an Air Force test of electronic equipment aboard a B-29 bomber. It turns out that a lower court had ordered the Air Force to turn over documents related to the flight. These documents were the accident report. The Air Force refused. Even when the Judge said that only he would look at the documents to determine if state secrets were involved. As a result, that court decided in favor of the widows, since the US Government would not provide any documentation.
However, this Supreme Court ruling reversed that decision. It’s an interesting read. The judge mentions how instrumental the Air Force was in the last war and how electronic equipment was crucial in expanding the Air Force’s effectiveness. They reasoned that if the US Government could not produce the documents, then it could not defend itself, so any trial was pointless.
The Supreme Court decision did have some good things to say. The primary point was simple: “It is not to be lightly invoked.” The also said words which ring through to our current legal predicaments with the State Secrets Privilege:
“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case.”
Also, it seems that the United States is always in danger and must grant “special rights” to itself above its people: “In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense.” This was in 1953.
In 2003, when the documents became unclassified, it is revealed that they contained no state secrets or sensitive material whatsoever. However, the documents did reveal that the Air Force failed to comply with orders to modify the B-29′s exhaust assembly, which was the cause of the crash.
This was the landmark case test of the State Secrets Privilege before the United States Supreme Court. It is now revealed that the United States committed fraud. The plaintiffs also filed a Writ of Error Coram Nobis to remedy fraud performed upon the Supreme Court by the United States Government. This is apparently a very rare thing, and was last used to set aside convictions of Japanese Americans who were wrongfully imprisoned based upon government falsehoods. The Clerk’s office of the Supreme Court rejected it the first time, later sounded confused by it, and subsequently accepted it after all. However, three months later, the Supreme Court refused the hear the case, without comment.
Making matters slightly worse, as the plaintiffs tried to carry on their suit in a lower court, Federal District Judge Legrome D. Davis of the Eastern District of Pennsylvania ruled on September 10, 2004 that the US Government actually did not commit fraud against the court: â€œA finding of fraud upon the court is justified only by the most egregious misconduct directed to the court itself such as bribery of a judge or jury or fabrication of evidence by counsel.â€? Apparently the affidavit supplied by the head of the US Air Force to the courts was not considered evidence.
Right now we have the State Secrets Privilege being used basically willy-nilly. President Bush extended it by executive order, granting it to all former Presidents and their representatives. It is being used on government “whistle blowers”. It is being used to hide surveillance of our own people, violating several laws and even Constitutional rights. It is even used to hide laws that exist, that we cannot know about. The State Secret Privilege has even been used to hide US foreknowledge of the 9/11 attack and the Executive Branch has even go so far as to retroactively classify documents after the fact that were being used in this investigation, including communications with Senators. This case is particularly interesting, and a good starting point can be found with Sibel Edmonds.
We’ve had all the major internet content providers turn over all the email we send, and things we visit – such as Yahoo!, MSN, etc…. with only Google refusing to provide the information. We have all the major telephone companies providing all telephone access information to the NSA, apparently with the exception of Qwest. AT&T, a major backbone provider of the Internet, is currently being sued for its alleged spying on our data for the NSA, in which the State Secrets Privilege is being invoked. And we have, thanks to the Patriot Act, gag orders on any company or citizen that does not allow them to tell us, or anyone else, if we’re under surveillance or even have been arrested. They don’t even need court orders to do this — well, at least they didn’t — I’m not really sure about today…
Almost every one of us has nothing to hide. And most of us wouldn’t mind anyone knowing anything about what we send in email or talk about on the telephone. But there is something fundamentally chilling about a government that can do almost anything it wants without having to say why. Particularly when they can force family, friends, employers, newspapers, etc. to keep their mouths shut.
Is this the democracy and freedom we want to see in world?
D.C. District Case No. 94-1756 “SEALED v. SEALED” Annotation: “Case is not available to the public.”
Those of you who are US citizens know that our government has three branches designed to check each other’s power and maintain balance and freedom. The Executive, the Legislative and the Judicial. Lately, the Executive has been attacking the Judicial, or just trying to do end runs around it. The Legislative seems fairly well impotent and meaningless. I’m really wondering how this is possible — and if anyone has any light, please shine it upon me!
I am seeing one glimmer of hope lately in the Electronic Frontier Foundation’s lawsuit against AT&T for illegal wiretapping, where the Executive has once again brought in the State Secret Privilege. Judge Vaugh Walker orders the parties to consider some very interesting questions, including:
How can the court minimize the conflict between plaintiffsâ€™ right to litigate this case and the governmentâ€™s duty to protect state secrets? See Ellsberg v Mitchell, 709 F2d 51, 57 (DC Cir 1983) (â€œ[T]he [state secret] privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.â€?).
If a warrant is not required for the government via AT&T to intercept plaintiffsâ€™ communications, how can the Fourth Amendmentâ€™s reasonableness requirement be adjudicated without implicating state secrets?
How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&Tâ€™s alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?
You go Judge Walker!!
Damn. It must be the long conversation with Johnny that got me so riled up again. Damnit Johnny!