Belaboring the Obvious

Tuesday, August 04, 2009

Not even in the most tortured rendering...

... of the Constitution can it be said that the document supports the "state secrets privilege." The whole underlying principle of the Constitution is that the federal government is responsive to the people, that it operates in daylight (note the language in it, for example, requiring regular reporting of government activity), and that it is an integrated part of the society.

And yet, the Obama administration continues to defend the previous administration's excessive use of the privilege to shut down cases that would prove embarrassing to the government.

The first and obvious reason why it's not inherently constitutional is that the Supreme Court established the principle in U.S. v. Reynolds in 1953. They did so at the request of the Executive Branch, and it is of considerable importance that the evidence offered by the Executive to that end wasn't just tainted, it was outright fraudulent. The Executive Branch claimed that great harm would come to the national security if the details of a B-29 research flight were to be exposed in open court if a wrongful death civil trial proceeded. Without actually examining the evidence--the Air Force accident reports, the high court agreed, and the principle was established--in the heat of an expanding Cold War.

More than forty years later, the accident reports were quietly declassified, and they showed, not just inferentially, but conclusively, that the crash of the B-29 was the result of incompetence and negligence. There was nothing--absolutely nothing--in the reports that would have compromised security in any way. The government had achieved its aim of creating a new privilege of absolute and total secrecy not found in the Constitution through deception and fraud.

It is that privilege which the Obama administration now defends so strenuously. It's not a feat of intellect to figure out why, because the roots go back to classification law itself. It is against the law to use the classification system to hide information which shows illegal activity on the part of the government, or which may prove embarrassing to the government. Because that same title of the U.S. Code also makes it a criminal offense for a government employee to reveal classified information showing the illegal activity of the government or actions bringing embarrassment to the government, it's the perfect Catch-22. Therefore, the only way such information comes to the attention of the general public is if a court demands that information during discovery (with essential sources and methods redacted, if necessary).

The state secrets privilege has been successfully used for years by the Bush administration, in particular, to completely thwart that discovery process, and to therefore maintain a perfect wall around itself, allowing no scrutiny--not even by the courts.

We know that the Bush administration has used the state secrets privilege--and the classification system upon which it depends--to hide illegality. We know this because the plaintiffs in one specific case were accidentally given a document by the government during discovery that proved that the government had acted illegally--it had eavesdropped on the telephonic lawyer-client conversations of a now-defunct Muslim charity without a warrant, at a time when a warrant was clearly required to do so. Even though the plaintiffs' lawyers have seen the document, they were ordered to return it and all copies, thus rendering it invisible to the legal process.

Even though it was illegal to spy on Americans without a warrant, and just as illegal to hide the evidence of doing so through the classification system, that is precisely what the government has done, and it is precisely this usurped power to violate the law and then hide that violation which the Obama administration now defends.

There ain't nuthin' Constitutional about it.


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