There is a movement afoot to revise the government’s ability to assert state secrets privilege as a means to shut down avenues of legal redress.  Rep. Nadler held hearings on this issue last week, and it is one that has been simmering for quite some time — mainly due to that bad taste that the Bush Administration’s penchant for obeisance, ass-covering and utter silence has left in everyone’s mouths.

When the Fitzgerald investigation was ongoing, and later during the Libby trial itself, we talked frequently about the issue of greymail, because I suspected that one of the main strategies for Libby, Rove and others up the chain would be to trot out state secrets to shut down any and all inquiry into their misdeeds

What I hadn’t counted on then was how involved Judge Reggie Walton would be in the case, how knowledgeable about CIPA he was (a lot of judges, sadly, are not when they don’t handle these types of cases regularly) and how willing he would be to go to the mat to fashion some workable solution around the various top secret obstacles strewn along the path to indictment and trial.  I’ve never been so happy to be wrong.  (It didn’t hurt that Fitzgerald and his team were creative in their proposals, either.)

But most litigants trying to dig into problems which touch on information the government wants to keep hidden aren’t so lucky.  Certainly, there are times when a state secrets privilege is asserted for a purely national security-based reason, where certain information if publicly disclosed could, in fact, harm our intelligence assets or agents, or could expose some substantive matter that is better kept under wraps.

But there is a significant thread of taint attached to the assertion of state secrets, precisely because administrations and agencies have used it for years to bury their own wrongdoing, for personal CYA, or simply to prevent the public from knowing about something they are ashamed to admit.  Including the secret that was claimed to be essential in the case that spawned the privilege in the first place — it was a carefully crafted CYA lie. Via Congressional Quarterly:

Relatives of the dead crew members fought back in the courts. But in a landmark 1953 decision, U.S. v. Reynolds, the Supreme Court backed the Defense Department.

“Certainly, there was a reasonable danger,” the justices said, “that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.”

There wasn’t, it turned out, but it’s been the law of the land for more than 50 years. And a total fraud.

Judy Loether told the subcommittee how she had stumbled across a Web site a few years ago that compiled old military crash reports.

And there she found the document that the government kept secret all these years, the 1948 crash report on her father’s B-29.

It revealed the conclusion by investigators that the plane had been brought down by errors on the part of the pilot, copilot, and engineer. There wasn’t a sensitive word in their report about the NSA eavesdroppers.

The Air Force had just used the state secrets privilege to cover its butt. The judge hadn’t even looked at the documents, taking the government at its word.

And it is far from the only case. The Federation of American Scientists has a useful list of various cases in which state secrets were asserted for reasons other than national security concerns.   Hilzoy, at Obsidian Wings, has a great explanation of the legislation introduced to combat this improper assertion of state secrets:

This legislation (S. 2533; excerpts below the fold) basically says that if the government invokes the state secrets privilege, it has to provide an explanation of why it is doing so, and the information that it claims the privilege should protect. It then requires the courts to examine this evidence in order to determine whether or not it deserves protection, and allows them to exclude such evidence only if it decides that the government was right to invoke the state secrets privilege. If the government just refuses to turn the information over, then it automatically loses on the point at issue (not necessarily the whole case.) The bill also says that the procedures used to protect classified information in other cases also apply here, and that the courts can craft further rules to protect classified data, though Congress has the right to reject those rules.

In other words: this bill says that instead of just taking the government’s word that state secrets are involved, the courts have to examine the evidence and conclude that they are. It transforms the state secrets privilege from a Get Out Of Jail Free card that the government can use just by waving it around into a claim that the government has to actually justify….

One of the areas where this is particularly applicable is the issue of illegal domestic spying and the pending litigation that EFF and the ACLU have with the telecom companies — which is precisely the reason that the Bush Administration is pushing so hard for immunity for them. Heaven forbid the public finds out that these telecoms were deliberately asked to disregard the law outright. More on this in the next thread… 

(YouTube of Coldplay, Spies.)

Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com