Topic: National Security
Origins of the State Secrets Privilege The Bush Administration has been leaning heavily on the state secrets privilege as a tool for eliminating judicial opposition to its policies. This article, the second in a series, explores the origins of the privilege and shows that it has been routinely used to cover up government wrongdoing.by Walt Thiessen
(libertarian)
Friday, October 12, 2007
In 1952, a B-29 bomber crashed, and three of its crew members were killed. The widows of those lost servicemen sued the United States under the Tort Claims Act and moved for the government to produce the accident investigation report for the crash. The Secretary of the Air Force filed a formal claim of privilege, claiming that the circumstances of the crash could not be revealed without revealing state secrets, that the plane had secret test equipment on board and was on a secret mission at the time of the crash.
The case was United States v. Reynolds, 345 U.S. 1 (1953). In a landmark decision, the U.S. Supreme Court upheld the government's claim and denied access to the accident report to the widows' legal team. This case was a landmark because it established the legal precedent for the state secrets privilege, which has been used by subsequent administrations to prevent the disclosure of various forms of information under civil court cases against the government. In other words, it is a legal justification for covering up violations of individual rights in the name of protecting national security.
What makes this decision particularly odious is that in the year 2000, the accident report was declassified by the government, 47 years after the Court's decision. It turned out that there was no secret mission. There was no secret test equipment. As reported by Wikipedia, the accident report, "did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case."
"When a claim of privilege against revealing military secrets is invoked, the courts must decide whether the occasion for invoking the privilege is appropriate, and yet do so without jeopardizing the security which the privilege was meant to protect....
"The doctrine in the criminal field that the Government can invoke its evidentiary privileges only at the price of letting the defendant go free has no application in a civil forum where the Government is not the moving party but is a defendant only on terms to which it has consented."
That last phrase is particularly disturbing: "...only on terms to which [the Government] has consented." In other words, Reynolds provides a sort of "get out of jail free" card to the government. All they have to do is cry "state secrets are at risk" and civil cases against them can be swept under the rug. This is a particularly useful tool for an administration that wants to play fast and loose with individual rights in order to further its own agenda.
Reynolds was not the first such case, but it established the widest parameters under which the government could hide. Previous cases included Totten v. United States in 1876 in which, "the court deemed an oral contract between a deceased spy and President Lincoln was unenforceable because courts cannot hear cases in disputes involving spying contracts, because it might do harm to make public the details of the enterprise and embarrass the government." [my emphasis]
What makes Reynolds even more ironic is that the events that inspired the Reynolds case occurred at the tail end of the Truman administration. It is ironic because Harry Truman himself once said, "The only secret is the history you don't know." What he meant may not be what you think he meant. As the History News Network has reported:
"When Harry Truman succeeded FDR in 1945, America's enemies list was changing fast. The next year, as the Iron Curtain fell and the Red Scare flared, Truman's attorney general, Tom Clark, expanded FDR's national security order to permit the surveillance of 'domestic subversives.' Clark and Truman endorsed wiretapping whenever matters of 'domestic security' were at stake, allowing taps to be placed on someone simply because he held radical views."
This of course led in 1950 to the beginnings of the McCarthy era, in which Senator Joseph McCarthy of Wisconsin "rose suddenly to national fame in 1950 when he asserted in a speech that he had a list of 'members of the Communist Party and members of a spy ring' who were employed in the State Department." His claims were never proven, but they led to a very embarrassing period in our country's history when McCarthy held hearings in which he went after private citizens including many famous Hollywood personalities with his infamous accusatory phrase, "Are you now or have you ever been a member of the Communist Party?"
In 1968, Defense Secretary Robert S. McNamara commissioned a report on the history of the war in Indochina (the Vietnam War). In 1971, the New York Times obtained a copy of the classified report, known historically as the "Pentagon Papers," and it began to publish them. The Nixon administration claimed such publication would cause "irreparable injury to the defense interests of the United States." They acquired an order against the Times to cease further publication. The case eventually made its way to the Supreme Court, which ruled that the Times had the right to publish the papers under protection of the First Amendment to the Constitution. The case did not explicitly cite Reynolds. It pointed instead to Dennis v. United States, 341 U.S. 494 (1951) which stated that liberties could be infringed when failure to do so would result in, "grave and irreparable" danger to the American public. So while the actual case history was different, clearly the same principle was being invoked.
In a 2007 article, Carrie Newton Lyons, co-chair of the National Security Committee of the American Bar Association Section of International Law and a former operations officer with the Central Intelligence Agency, wrote in the Lewis & Clark Law Review (11 LEWIS & CLARK L. REV. 99 (2007)) how in 1994, former DEA agent Richard Horn filed suit against the CIA for bugging his home.
"This case is also clouded in secrecy, and few court documents regarding the case are publicly available, as most are still under seal. A few pieces of information, however, have become public which reveal a little information about the case. Presumably at one point, the case was titled Horn v. Albright, filed under seal in 1994 and seemingly stagnant until a decision in 2004 by Judge Royce Lamberth to dismiss the complaint in its entirety based on the state secrets privilege.
"The case concerns former Drug Enforcement Agency (DEA) agent Richard Horn, who filed a complaint in the District Court for the District of Columbia in 1994, alleging that the CIA, the State Department and another government agency illegally eavesdropped on his home and his telephone conversations while he was serving in Burma, violating the Fourth Amendment and the Foreign Intelligence Surveillance Act of 1978.
"Horn arrived in Burma in 1992, but only fifteen months later, before the completion of his tour, he was removed from his post by the State Department; he alleges that the CIA Chief and the State Department Chief of Mission (COM) in Burma at the time conspired to remove him—and planted the bugging devices—after he disagreed with their assessments of the Burmese opium problem.
"According to one article, twenty-four other DEA agents have joined the complaint—creating a class action—claiming that these agencies have similarly spied on them while they were posted abroad.
"For fear of reprisals, however, none of the other plaintiffs are named.
"The article suggests that the case actually consists of several claims against the CIA Chief and COM personally, and against the government agencies, all of which have been combined.
"The government has seemingly employed a variety of tactics to get the case dismissed: first, claiming the eavesdropping did not happen; second, claiming that the CIA Chief and COM had qualified immunity because Americans overseas are not protected by the Fourth Amendment; and finally, invoking the state secrets privilege.
"Initially, the case was being heard by Judge Harold Greene, but after his death, it was moved to Judge Lamberth’s court.
"In 1997, it appears that Judge Greene issued an opinion that sufficient evidence of eavesdropping existed and that Fourth Amendment protections do extend to Americans abroad.
"This opinion, however, is under seal. Regardless of the prior proceedings, in 2004, Judge Lamberth dismissed the case based on the invocation of the state secrets privilege.
"Horn is appealing the dismissal."
Robert Chesney of the Wake Forest University School of Law, in July 2007, wrote an article in which he documents 69 cases prior to 2001 where the state secrets privilege was invoked by the government, although curiously he avoided mention of the Horn case. He wrote, "I find that the Bush administration does not differ qualitatively from its predecessors in its use of the privilege, which since the early 1970s has frequently been the occasion for abrupt dismissal of lawsuits alleging government misconduct."
Most of the decisions reached in these cases are still under classified order, which means we won't learn for many years (if ever) what government transgressions are being covered up by them. Chesney claims that the Bush Administration's use of the state secrets privilege "does not differ quantitatively" from prior administrations. He reports that the privilege has been invoked by Bush 20 times between 2001 and 2006. This figure is disputed by OpenTheGovernment.org, which claims that under Bush the privilege "has been used a reported 39 times - an average of six times per year in 6.5 years that is more than double the average (2.46) in the previous 24 years." Among other things, the discrepancy shows that it's very difficult to get an accurate count of the number of cases that have been filed and then dismissed under the state secrecy privilege. This creates a massive opportunity for government wrongdoing to vanish with impunity, which therefore encourages the government to be lax about such wrongdoing. After all, if it's so easy to sweep embarrassing and illegal actions under the rug, we can be sure that the incidence of violations of individual rights will inevitably increase over time.
We began this series with my article, "White House Video Leak Is Tip Of Insecurity Iceberg," which laid out parameters suggesting that the Bush administration is working contrary to America's best interest. In my third article on Monday, I will explore the cases brought against the Bush administration which have been dismissed under the Reynolds precedent.
[Follow-up note left Monday, October 15, 2007 -- new information has come to my attention which will delay the release of my next article until the end of this week. Look for the third article in this series to appear on Thursday or Friday. --WT]
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"Of all tyrannies a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience." –C.S. Lewis
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