As noted in Lisa Lockwood's Diary http://www.dailykos.com/... now scrolling down the list, Press Secretary Robert Gibbs was quoted yesterday expressing his support for the DOJ's attempt to veil its illegal wiretapping of Americans under the catch-all shibboleth of "State Secrets." Whether Obama's support for the DOJ simply reflects a desire for institutional carryover and consistency based on the Bush DOJ's prior "interpretation" of existing law or whether Obama is actually daft enough (which I doubt) to believe that no laws were broken here is not the subject of this Diary. The subject of this Diary is the wheelbarrow load of Happy Horseshit known as the "State Secrets" Privilege, where it came from, and what it means.
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As Pulitzer-prize winning journalist, Barry Siegel's book, "Claim of Privilege: A Mysterious Plane Crash, a Landmark Supreme Court Case, and the Rise of State Secrets," reveals, the entire legal premise stems from a Supreme Court case that was based on a lie. In the Reynolds case, which lies at the root of the entire doctrine, the DOJ claimed "state secrets" in an effort to disallow discovery into the military's bungling negligence underlying a plane crash that killed several pilots who were testing out some newfangled missile equipment.
http://www.latimes.com/...
The Reynolds case arose from the October 1948 crash of a B-29 Superfortress bomber over Waycross, Ga. The plane was on a secret test flight associated with the government's race to design a long-range guided missile system to bolster its Cold War arsenal. Of the 13 passengers and crew, nine were killed, including three civilian engineers from Radio Corp. of America, who were working on the sophisticated electronics necessary for the enterprise.
It was only after the Supreme Court upheld the DOJ's argument and the case was ultimately dismissed that it became clear there were no "state secrets" at issue. In fact what the Navy wanted to keep secret was its own gaping negligence. And this has been the pattern in repeated invocations of "State Secrets" by successive Administrations throughout the history ever since.
As Siegel reveals -- and this is no shock to the cynics among us -- the privilege claim was based on a lie. The suppressed documents, which were declassified in 1996, did not reveal anything about the guided missile program or contain any other national security secrets. Rather, they added to the considerable public information showing the tendency of B-29 engines to catch fire and revealed that the Air Force had failed to install heat shields on the engines of the plane that went down, despite a maintenance order calling for this retrofit. The reports also suggested some potential missteps by the crew after an engine fire put the flight in jeopardy.
In short, the Department of Justice asked the courts and the nation to trust it precisely when it deserved no trust at all. And in a political context heavy with the fear of Soviet spy schemes and international threats, the Supreme Court acquiesced, setting aside the skepticism of the lower court judges closest to the facts of the case.
Thereupon was born the "state secrets" privilege.
As Garry Wills points out in an outstanding review of Siegel's book recently published in the New York Review of Books (pdf here:http://barry-siegel.com/...) {or go to the tribenet link, below} between 1977 and 2001 there were 62 cases in which the Government invoked the Reynolds case as a justification for either withholding evidence or otherwise seeking the dismissal of suits in which the public got its nose too close to whatever steaming pile du jour the Government sought to hide. This deference to assertions of "state secrets" was actually abetted and broadened by the courts, which developed a "mosaic" approach towards evaluating the claim:
some courts not only reaffirmed the decision but broadened its application by a "mosaic theory," saying that information not directly concerned with national security may be pieced together with other pieces of the "mosaic" to give a different picture. Only government experts, not lay observers or even judges, are qualified to see such technical connections. By this test, almost any information can be presumed to have a subtle connection with national security. The government now had a greater stake than ever in retaining the validity of U.S. v. Reynolds
http://people.tribe.net/...
History suggests the real purpose in invoking the "state secrets" canard is most often to hide either government bungling or outright malfeasance. Wills notes:
As early as 1953, Attorney General Herbert Brownell told President Eisenhower that classification procedures were "so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security."[2] And in 1989, Erwin Griswold, who as solicitor general had argued against publication of the Pentagon Papers, confessed that there were no state secrets in those papers, and published an Op-Ed column in The Washington Post saying: It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification, and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort of another.[3]
Of course there are a few instances where something
might be potentially dangerous if disclosed. But there's the rub--unless a Court is afforded a fair opportunity to make that evaluation, the privilege becomes a shield for rampant abuse of power. Not surprisingly, this was the tack taken by the Bush Administration--the most secretive and obfuscating in history:
But U.S. v. Reynolds is one part of a different mosaic—a larger picture of executive usurpation that has sealed off the presidency behind walls of secrecy, unaccountability, and extreme legal theories of detention, torture, defiance of Congress, and spying on citizens. It is as part of that larger scene that U.S. v. Reynolds remains important, as a major early step in letting governments lie with court sanction.
So whenever you hear the phrase "state secrets," try to remember that
the whole doctrine is based on a lie.