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On Monday Adam Liptak reported on a friend-of-the-court brief filed by the Obama administration that "argued, though no one had asked, that the state secrets privilege [SSP] was rooted in the Constitution." The story itself raised some questions to me about the journalistic process: What prompted it to be written now and not when the brief was first filed? Liptak describes the state secrets claim seeming almost tacked on to the end of an otherwise dry and unremarkable document; did its significance escape everyone until recently? Whose attention did it finally come to? There is no note of civil liberties groups raising awareness on it or any other kids of activism. Did someone from such a group become aware of its importance and contact Liptak? Had he been reviewing it himself and finally gotten to the last bit? I would love to know how it came to be published now when it had already been out there and nothing that I am aware of had happened to advance the story. (I mean that sincerely, too, not in the way "interested" is sometimes used to intimate bad practice or dark intentions.)

As for the filing itself, it seems like nothing so much as an attempt to short circuit the early rumblings on the issue in Congress. In February Senators Feingold, Kennedy, Leahy and Specter introduced the State Secrets Protection Act (SSPA), "a bill that provides guidance to federal courts considering cases in which the government has asserted the state secrets privilege." As Liptak points out, and as can never be pointed out often enough, the SSP was created by the 1953 United States v. Reynolds decision, in which an Air Force accident report was suppressed because the government claimed that public disclosure of the details of the accident would jeopardize national security. Liptak: "When the report was finally released in 1996, it contained no secrets, but it did show that the deaths of nine men in the crash of a B-29 bomber had been caused by the Air Force’s negligence." In other words, the prototype case for the SSP – the one that established the precedent that has been invoked for SSP claims since – was based on a lie used to cover up politically inconvenient facts.

While the SSP has been invoked by presidents of both parties since 1953, the Bush administration was particularly enthusiastic in claiming it. This made it a much more urgent issue for Barack Obama to address, and as with so many other civil liberties issues he has mouthed happy words for public consumption and done almost precisely the opposite in practice. If the president really thought the SSP was overbroad and over-used then some of the provisions of the SSPA ought to be music to his ears, such as:

  • Codify many of best practices that are already available to courts but that often go unused, such as in camera hearings, non-privilege substitutes, and special masters
  • Require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits
  • Forbid judges from dismissing cases at the pleadings stage, before there has been any document discovery, while protecting innocent defendants by allowing cases to be dismissed when they would need privileged evidence to establish a valid defense

That last point is particularly important in light of the Supreme Court’s recent evisceration of discovery. As a former professor of constitutional law what is there for him to object to? Of course, the key word is former. In his current position the situation obviously looks much differently to him, in the same way that then-Senator Biden was a co-sponsor of the SSPA in the last session of Congress but now-vice president Biden has nothing to say on the subject. But the White House’s friend-of-the-court brief speaks volumes on how the administration views the SSPA. Quite simply, they want it dead before the debate about it can even get underway. With no prompting at all, and in a seemingly strange and random manner that makes it look like a non-sequitur, the president has asked the Supreme Court to issue a ruling that would preemptively nullify the SSPA. If the court complies the whole discussion will be purely academic, and the executive branch will succeed in its latest effort to subvert the legislative. Even if you believe the president acts with only the purest intentions, this has to be seen as an attempt to make the government less accountable and more opaque – and as profoundly undemocratic.

danps

danps

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