John Dean succinctly dissects why skepticism should greet assertion of state secrets:
As one commentator nicely states it, the state secrets privilege was "born with a lie on its lips." When the government says "national security," the federal courts seem to cower. Yet anyone who has worked in this area knows that seldom is nation security truly at stake when the government claims it to be. Typically, the invocation of national security borders on being a hoax.
And, as emptywheel has pointed out recently with regard to the CIA tapes controversy, the Bush Administration has so overplayed its hand and its overuse of classification demands for the trivial — I’m looking at you, Dick — that the cry of "wolf" no longer gets the desired rise.
Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told IPS, "The administration has argued on the merits that the president has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can’t even rule on that assertion of power because the alleged criminal violation is a ‘state secret’."
Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told IPS, "The expansion of executive power for its own sake has been a political priority of the Bush administration since the beginning. Consistent with this agenda, the administration has been conspicuous in its defense of the executive’s secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest. This is true not just for state secret claims, but for the full scope of conceivable executive privilege claims."
He added, "The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress."
And that, in a nutshell, is why the fight in Congress over the state secrets legislation, over not granting telecom immunity, over a whole host of issues is so important: because there must be tension, must be limits and testing of them, between the branches of government. I keep turning back to Naomi Klein’s Shock Doctrine, and trying to piece together the disperate threads of what has been — and what should have been — in terms of accountability and constitutional strength.
And it comes back, again and again, to the fact that so much of the public has been cowed into a submissive "don’t want to rock the boat" attitude wherein questions are raised furtively among friends, but real discussion no longer takes place to the extent it needs to do so in the public square. We see this on the Talking Head shows, we see it in so many of the media who do more infotainment than real news, we see it in the immediate wall of divisiveness that a "left versus right" framing takes the debate, instead of focusing it on the actual issues.
There are fundamental questions underlying all of the assertions of state secrets in the past few years which need to be asked. So, I’m asking:
1. What exactly has been done in our name at the behest of the President of the United States? How far is his administration willing to go to keep it secret? And how many innocents have been caught up in this mess of rendering, never-ending detention, and failure to follow the basic precepts of human rights law?
2. When will the hypocrisy of selectively leaking certain portions of top secret information while simultaneously decrying any real exposure of the whole truth be called for the bald-faced lie that it is on its face? Over and over again until you stop?
3. How, exactly, do we "win" by destroying the very notions on which this nation is founded? How is it a victory to destroy due process?
4. By allowing wholesale assertion of the state secrets privilege, the Bush Administration is given a blank check of power with no means of oversight nor any check or balance to its conduct. This is not what the Founders foresaw as the duty of either the legislative or judicial branches. The state secrets legislation is a good step back toward the proper direction. But more is needed — including, but not limited to, standing up to the petulant demand for immunity for telecoms as CYA insurance for Dick Cheney and his Article II power-grabbing minions in order to protect the secrets of its behind-the-scenes machinations to undo FISA, among other legal limitations on executive power. When exactly can the American public expect lawmakers to find their spines and stand up for the rule of law?
Because, as Henry Lanman accurately said in Slate:
The Bush administration has fought at every turn to limit scrutiny of its conduct since Sept. 11. And, unless courts start to reject its assertion, the administration may have found in the state secrets privilege the ultimate tool for making its actions invisible.
Isn’t it time we all started demanding more sunshine?
(YouTube of "Let The Sun Shine In" from Hair.)