State Secrets
By Brian Beutler
Eric Holder wants to end abuse of the state secret privilege:
I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.
That’s great news insofar as you trust Eric Holder. But though he’ll surely be an improvement over Bush Attorneys General, there’s no reason to assume his judgment on this score won’t, over time, become politicized. What would really win me over is if Holder promised to support legislation that would ultimately result in some sort of consistent review process for all invocations of the state secrets privilege. Most of you probably know this already, but the history of the state secret privilege is a fairly ugly one.
Back in the early 1950s, three Air Force contractors were killed in a bomber crash, and their widows sued the United States for compensation. When they tried to force the government to produce the incident report for the crash, though, the government refused, claiming the report contained state secrets and that releasing it would imperil the nation. Lower courts weren’t particularly moved and sided with the widows, but the Supreme Court disagreed, affirming the government’s right to withhold evidence in this manner and winning substantial deference for the privilege from the courts for decades.
The only problem is, the government lied. Contrary to its claims, the bomber wasn’t on a secret mission, and there were no top secret technologies aboard. Nothing in the incident report, which was declassified several years ago, legitimized the government’s decision to withhold it. What the report did contain, however, was evidence that the plane had been rather poorly maintained–a fact that might have been embarrassing for the Air Force, and vindicating for the dead mens’ wives, but that hardly amounted to a legitimate claim of state secret.
Precedent is precedent, though. The Supreme Court had little information to work with, but it came nonetheless, and probably incorrectly, to a far reaching decision that has influenced case law pretty widely ever since. In that way, state secrets has become one of the executive branch’s most powerful privileges
The best way to scale back that power, it seems, would be for Congress to pass a law requiring judges to review classified evidence behind closed doors whenever a state secrets claim is made in their court. Or, thinking out loud, to create a separate court (maybe modeled on the FISC?) which would independently review state secrets claims as they come, and determine their validity one by one. I don’t hold out much hope that this will happen, but if Eric Holder could get behind it, that would be change I can believe in.
18 Responses to “State Secrets”
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February 3rd, 2009 at 7:58 pm
The state secrets need to be examined in the case of FISA wiretapping, too. It’s just too convenient.
February 3rd, 2009 at 8:21 pm
If we were truly being honest, we’d realize that 99% of what is classified is classified for one reason only – entirely unconnected to “security”: prevention of embarrassment.
February 3rd, 2009 at 10:48 pm
I’ve studied the state secrets privilege a bit, and currently I don’t think in camera review by judges would help all that much. It already happens in a handful of cases, and the judges always give extreme deference to the government assertion. I think this is (slowly) starting to shift, though, thanks to Bush&CO’s obscene overuse of the doctrine. Not saying this wouldn’t help, but it’s no magic bullet.
Incidentally, there are a couple of recent books discussing Reynolds and its influence on state secrets, one by Barry Siegel and one by Louis Fisher.
February 4th, 2009 at 1:32 am
THE most gagged person in US history is Sibel Edmonds.
Is Holder going to re-open her case – the case which proves that “senior elected US officials” (in her words) committed major treason against the US? Treason involving organized crime involved in drugs and weapons smuggling, including nuclear materials trafficking? That involved espionage against the United States by certain major foreign organizations?
Right.
Email me when this happens.
February 4th, 2009 at 5:18 am
Having worked in the DOD, I would assume that any assertion of state secrets in the context of a lawsuit is a CYA move unless proven otherwise. I guess that judges tend to think differently, but then they tend to believe cops as well.
February 4th, 2009 at 9:23 am
As a lawyer, may I suggest an alternative? Sometimes there really will be state secrets, and their bearers will go into contempt of court rather than reveal them. At which point, we’re stuck again.
So instead, the government should have the sovereign right to keep its secret by conceding the evidentiary point. In this case, for example, the Air Force could be permitted to not release the report if they conceded that the report would prove that the Air Force committed negligence.
February 4th, 2009 at 9:50 am
I second DTM’s comment in #1 above. Under Clinton, the goverment would comply with information requests as their default response. Bush did the exact opposite. Obama seeks to go back to the Clinton approach, and I think that’a an unqualifiedly good thing. I don’t know what you base your skepticism on (Holder was a Clintonite, after all), but it seems misplaced.
There’s already plenty to criticize Obama’s first two weeks for – the fact that an economic stimulus bill seems to be morphing into a tax cut and highway bill due to knuckling under to a Republican minority, for example – but piling on about hypothetical future actions is ridiculous.
Find something tangible to rip our guy for, or just keep your paranoia to yourself. Please.
February 4th, 2009 at 10:45 am
It’s a terrific idea, though I’d be hesitant to create a whole new court to do it: no reason why regular federal judges hearing the cases can’t review documents “in camera,” as they say — i.e., behind closed doors — and decide whether they’re really hiding state secrets. The 1950s air force case is the perfect example.
So is another really important case coming up this week in a federal appeals court involving the ACLU’s lawsuit against a subsidiary of Boeing that assisted the CIA in its “extraordinary rendition” program — flying people to countries where they’d be tortured.
The government (under Bush) convinced the court to dismiss the case, arguing that the subject matter of the case itself is a state secret. This will be the first major test case for the Obama administration — and for Eric Holder — on its pledges to end unnecessary state secrecy.
Here’s my earlier post on the case:
http://washingtonindependent.com/27199/torture-case-poses-early-state-secret-test
Holder has to respond to this in court by Feb. 9. Definitely worth keeping an eye on.
February 10th, 2009 at 6:47 am
*reading deviatar’s post at #9*
*LONG sigh*
Now that that response in that case has been made, any more thoughts here?
March 2nd, 2009 at 9:01 am
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March 7th, 2009 at 9:11 pm
Eric Holder is a racial-minority individual, and in his heart and mind he inevitably does not endorse hate crimes committed by George W. Bush.
George W. Bush committed hate crimes of epic proportions and with the stench of terrorism (indicated in my blog).
George W. Bush did in fact commit innumerable hate crimes.
And I do solemnly swear by Almighty God that George W. Bush committed other hate crimes of epic proportions and with the stench of terrorism which I am not at liberty to mention.
Many people know what Bush did.
And many people will know what Bush did—even to the end of the world.
Bush was absolute evil.
Bush is now like a fugitive from justice.
Bush is a psychological prisoner.
Bush has a lot to worry about.
Bush can technically be prosecuted for hate crimes at any time.
In any case, Bush will go down in history in infamy.
Submitted by Andrew Yu-Jen Wang
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993
“GEORGE W. BUSH IS THE WORST PRESIDENT IN U.S. HISTORY” BLOG OF ANDREW YU-JEN WANG
_____________________
I am not sure where I had read it before, but anyway, it is a linguistically excellent statement, and it goes kind of like this: “If only it were possible to ban invention that bottled up memories so they never got stale and faded.” Oh wait—off the top of my head—I think the quotation came from my Lower Merion High School yearbook.
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