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Captain Blight
08-01-2010, 04:41 PM
I've been wanting to start a thread on the State Secret Privilege (http://en.wikipedia.org/wiki/State_Secrets_Privilege): The idea that the government can, at its own discretion and with no oversight, claim that certain information in a case would threaten national security if the information were made public (as in a lawsuit).

This is largely based on United States V Reynolds (http://en.wikipedia.org/wiki/United_States_v._Reynolds), a 1953 case in which a B-29 crashed. The families of the survivors sued; the government claimed that the crash report contained "national secrets," which must obviously be guarded. Even with the handicap of not having the crash investigation report as evidence, the lawsuit had been won by the claimants at the State level, and won again on appeal. It was overturned in favor of the Governement by the Supreme Court, and was thus enshrined into law and treated as precedent (I'm not a lawyer, forgive me if I get some of the terminology and syntax wrong).

Problem is, the government lied in the Reynolds case. One of the daughters of the crash victims, some 45 years later, found the crash report online (http://www.fas.org/sgp/othergov/reynoldspetapp.pdf) (starts on Page 10A of the link). There was no mention in the crash report about any classified equipment.

So now we have a body of law, based on a lie, being used more and more as time goes on: From Fair.org:

The privilege was at first invoked sparingly—only six times in the 24 years from 1953 to 1976, according to analysis by political scientist William Weaver published in the Secrecy Report Card 2008. In the next 24-year period, from 1977-2000, it was used 59 times (2.5 times per year). In the first seven years of the Bush administration, the privilege was invoked 45 times—6.4 invocations per year.

The Bush administration not only asserted the state secrets privilege more often, it significantly widened its scope, getting courts to throw out entire lawsuits on the grounds that the subject of the lawsuit was itself a state secret. This expanded sweep has halted lawsuits involving the warrantless wiretapping program, torture victims Khalid El-Masri and Maher Arar, and FBI whistleblower Sibel Edmonds. Bush’s novel assertion that the government can immunize itself against claims made in the national security realm has met with widespread acceptance in the courts as well as in corporate media.

And now Obamaco is using it in much the same way. In 2004, I believe, and again in 2006, legislation was proposed to require that the judge in the case review the Governement's case in private and make a decision based on his or her own review. This has not even made it to a vote either time.

I think this is wrong. How say you?

chasbartlett
08-02-2010, 03:41 AM
They are all crooks using such things to hide behind, I once heard a Colonel make a statement to a subordinate to insinuate that classified information would be involved if something went public.....the information was his involvement in a highly illegal action in a foreign country.

Captain Blight
08-02-2010, 12:19 PM
That's the point behind allowing judges to review the evidence at hand. I understand part of the issue is that not all judges are able to make a determination on what does and does not constitute a threat to national security. I'd hope that at the Circuit Court level, though, we have a pool of people who are qualified from which to choose. I'm not sure what the unintended consuences of this might be.

Kaa
08-02-2010, 12:54 PM
Heh. The State Secrets Privilege is almost as much fun as the sovereign immunity (http://en.wikipedia.org/wiki/Sovereign_immunity#In_the_United_States) :D

Kaa

Ian McColgin
08-02-2010, 01:03 PM
To my mind, invoking Reynolds amounts to prima facie evidence that the government is lying. I imagine that there might be a few times they didn't but the promiscuous use of Reynolds by the last administration sure makes that seem rare. Even if the couple of times Obama used it are legit, I hate to see him do it. There should always be judicial review.

Captain Blight
08-02-2010, 01:17 PM
I think one of the unintended consequences of Reynolds was a further suborning by the military authority of the civil authority. It gives the military sway over civil matters, and that is, I believe, unconstitutional

David Tabor (sailordave)
08-02-2010, 06:15 PM
To my mind, invoking Reynolds amounts to prima facie evidence that the government is lying.

And THAT my friends succinctly sums up my views of the guv'mint...
Well put Ian.