Editore"s Note
Tilting at Windmills

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September 16, 2007
By: Kevin Drum

STATE SECRETS....As we all know (or should know by now), the "state secrets privilege" in U.S. courts is basically absolute. If the government tells a judge that divulging a certain piece of evidence might endanger national security, then the evidence is excluded. If that means the case itself can't go forward, tough. According to Barry Siegel in the LA Times today, the Bush administration has invoked the state secrets privilege 39 times, nearly triple the rate of the four previous administrations. It's the neutron bomb of wartime executive power.

But if it's being abused, why doesn't Congress get a spine and modify it? Funny you should ask. You see, the state secrets privilege wasn't created by Congress. It was created by the Supreme Court half a century ago when the government tried to get a suit over a B-29 accident thrown out on the grounds that it would endanger national security to let it go forward:

[District Judge William] Kirkpatrick found the government in default and awarded the widows damages. A three-judge panel of the U.S. 3rd Circuit Court of Appeals unanimously affirmed his decision.

But when the matter came before the U.S. Supreme Court, it reversed the lower courts, for the first time formally recognizing a state secrets privilege in the landmark ruling U.S. vs. Reynolds. The government shouldn't have absolute autonomy, wrote Chief Justice Fred Vinson in his 1953 opinion, but if the government can satisfy the court that a "reasonable danger" to national security exists, judges should defer and not force the government to produce documents — not even for private examination in the judge's chambers.

Ironically, we now know that there were no national security implications at all in the original Reynolds case. Turns out it was garden variety negligence and incompetence that caused the plane to crash — something the lower court judges would have known if they had been allowed to review the accident report privately. But not only did the Supreme Court decline to allow an in camera review, it set a precedent specifically instructing trial courts that if there's a "reasonable danger" that national security is at stake, "the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."

In other words, if the government says so, then the case gets thrown out. To this day, courts are extremely reluctant to demand even a private review of executive branch secrecy claims, let alone issue an affirmative ruling against the government:

Yet the Bush administration may finally have escalated the dubious use of the state secrets privilege to a point of resistance. In the summer of 2006, U.S. District Judge Vaughn R. Walker...ventured to deny government state secrets claims in the domestic surveillance and eavesdropping cases.

....[Walker's opinion] came on appeal before the three-judge U.S. 9th Circuit panel last month....But judicial deference, for once, did not seem to be in the air. According to news reports, Pregerson (a President Carter appointee) sounded downright irritated; judges McKeown and Michael Daly Hawkins (President Clinton appointees) at the least were doubtful.

....Hearing the deputy solicitor general talk of "ultimate deference" due the executive branch, Pregerson asked: "What does 'ultimate deference' mean? Bow to it?"

Question: if the 9th Circuit rules against the government and the Supreme Court takes up the case, where will conservatives side? Against the 1953 decision in which the Supreme Court invented an expansive new claim of privilege where none had existed before, surely a clear-cut case of the judicial activism they so often condemn? Or with the government because....because....they really like expansive executive branch powers? Stay tuned.

Kevin Drum 1:43 PM Permalink | Trackbacks | Comments (40)

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Comments

this wouldn't be an issue but for the US Constitution's irrational bush hatred.

Posted by: benjoya on September 16, 2007 at 1:49 PM | PERMALINK

Traditional conservative would not like this privilege (it is not a law, it is a privilege). For instance I know for a fact that Barry Goldwater was not fond of it. Today's drugstore conservatives will support it all the way until there is a Democrat in the White House; because they are nothing more that greedy, corrupt, self serving hypocrites. Their own greed is all they care about. Thanks for writing about US v. Reynolds. It is one of the worst precedents ever set by the United States Supreme Court.

Posted by: bmaz on September 16, 2007 at 1:58 PM | PERMALINK

where will conservatives side? ... with the government because....because....they really like expansive executive branch powers?

Yes.

(There are no conservatives anymore, just right wing authoritarians.)

Posted by: jimBOB on September 16, 2007 at 2:00 PM | PERMALINK

oh fer chrissakes, kevin.

it's another installment of easy answers to easy questions.

the SCOTUS will side with expansive executive power. because that's what they were hired to do.

whether that will change after a few years of having a democratic executive is a good questions.
but so long as the executive is in republican hands, and even perhaps so long as the court can foresee its returning to republican hands within four years, the scalia/thomas/roberts/alito court will automatically side with executive tyranny.

as madison wrote in the federalist papers #51:
"in republican government [i.e. in a republic], legislative authority, necessarily, predominates."

which is to say:
any government that subordinates the legislature to the executive is no longer a republic.

Posted by: kid bitzer on September 16, 2007 at 2:00 PM | PERMALINK

Very simply, Congress can pass a law that doesn't offend against state secrets, allows the executive to abuse our secrets statutes to its heart's content and still allow justice. All they have to do is say that in court, if the executive invokes state secrets, the case goes on as if the executive had stipulated to the claim in civil cases. In criminal cases, the executive claim would bar any evidence about the supposed state secret from being considered by the trier of fact.

Posted by: freelunch on September 16, 2007 at 2:08 PM | PERMALINK

Even though the privilege was invented by SCOTUS, Congress could still get a spine and modify it. Not that it would survive a veto, of course.

Posted by: Disputo on September 16, 2007 at 2:10 PM | PERMALINK

if the 9th Circuit rules against the government and the Supreme Court takes up the case, where will conservatives side?

Conservatives will stand with the Supreme Court because they believe in stare decisis which is the principle that precedents should not be overruled. Liberals are judicial activists and that's why they support overruling Supereme Court precedents they disagree with.

According to news reports, Pregerson (a President Carter appointee) sounded downright irritated; judges
McKeown and Michael Daly Hawkins (President Clinton appointees) at the least were doubtful.

So 2 Clintonistas and a Carterista judicial activist support overruling a Supreme Court precedents just because it helps President Bush. Why am I not surprised?

Posted by: Al on September 16, 2007 at 2:11 PM | PERMALINK
(There are no conservatives anymore, just right wing authoritarians.)

What do you think the label "conservatives" has referred to ever since it described the defenders of monarchy and the privileges of the aristocracy from the democratizing reforms sought by (classical) liberals?

Right-wing authoritarianism is, and has always been, the heart of conservatism.

Posted by: cmdicely on September 16, 2007 at 2:13 PM | PERMALINK

Conservatives will stand with the Supreme Court because they believe in stare decisis

Bullshit. As we saw last spring with the abortion ruling, you idiot.

Posted by: Blue Girl, Red State (aka G.C.) on September 16, 2007 at 2:19 PM | PERMALINK

Al is confusing stare decisis and scare decisis.

Posted by: Disputo on September 16, 2007 at 2:22 PM | PERMALINK

Why do the Republicans favor expanding executive branch powers, even though they expect to be out of office?

Easy: They know that they will exploit those powers more ruthlessly when they get back in office -- that is, more potential power in the hands of Democrats doesn't amount to much more real power, because the Dems will abuse it somewhat less vigorously.

Posted by: wingerwatcher on September 16, 2007 at 2:31 PM | PERMALINK

The Founding Fathers would puke in the faces of these right-wing fascists. National security is a joke and the most abused phrase in the American language. Other than not publishing the recipe for making an atomic bomb, there should be no "state secrets" in the United States. Period!

Posted by: The Conservative Deflator on September 16, 2007 at 2:43 PM | PERMALINK

I wonder if Atrios has posted this in "simple answers to simple questions yet".

Posted by: jussumbody on September 16, 2007 at 3:03 PM | PERMALINK

Right-wing authoritarianism is, and has always been, the heart of conservatism.

Maybe if you go back to the 18th century this is so, but I was thinking about more recent american history. The conservatives who helped force out Nixon weren't complete authoritarians. Herbert Hoover may not have had a clue about how to deal with the Great Depression, but he didn't try suspending the constitution and using all available means to marginalize opposition, including starting a war on false pretences in order to seize wartime power. More recently, up until Ubu G there were plenty of conservatives in the DOJ who didn't see their jobs as politicizing criminal prosecutions. I think you're wrong to suggest it's always been this bad. It hasn't.

Posted by: jimBOB on September 16, 2007 at 3:07 PM | PERMALINK

As if the wingnuts would let a pesky contradiction stand in the way of their march to totalitarianism.

Posted by: floppin' pauper on September 16, 2007 at 3:18 PM | PERMALINK

Ninth Circuit? - O'Arrogantone and Rush have already prepared their Whines and Talking Points. Another round of break up the Ninth.

Posted by: thethirdPaul on September 16, 2007 at 3:19 PM | PERMALINK
Conservatives will stand with the Supreme Court because they believe in stare decisis which is the principle that precedents should not be overruled

Fine, but we have only one or two conservatives on the Court, how will the reactionary authoritarians vote?

Posted by: freelunch on September 16, 2007 at 3:20 PM | PERMALINK

I thought an appellate court was bound to follow SC precedent, whether they liked it or not. But, the columnist seems to think the 9th Circuit might overturn SC precedent. No wonder the 9th Circuit is considered a rogue court. The 9th Circuit is the most over-ruled circuit court. If the 9th Circuit oversteps their authority (as they often do), I'd expect the SC to slap them down, as they often do.

As to the issue itself, it's unclear what emergency powers the Executive branch ought to have under the Constitution. Clearly they need more than just criminal prosecution powers. Thirty-nine applications in six years doesn't sound like that many. Sure it's a higher rate than the four previous administrations, but we (and the rest of the world) weren't under attack from al Qaeda terrorism during those administrations.

Posted by: ex-liberal on September 16, 2007 at 4:16 PM | PERMALINK

"I thought an appellate court was bound to follow SC precedent, whether they liked it or not."

Not really, but I find myself too bored to educate you, even assuming that was possible.

"No wonder the 9th Circuit is considered a rogue court."

Only by partisan morons incapable of looking at the actual data.

"As to the issue itself, it's unclear what emergency powers the Executive branch ought to have under the Constitution."

Since this case has nothing to do with "emergency powers," your musing is, as usual, off-topic and ill-informed.

Posted by: PaulB on September 16, 2007 at 4:47 PM | PERMALINK

but we (and the rest of the world) weren't under attack from al Qaeda terrorism during those administrations.

First off, al Qaeda did not invent terrorism. Second, we created the monster ObL when his pathologies were focused on our cold war enemy, the Soviets.

Posted by: Isle of Lucy on September 16, 2007 at 5:14 PM | PERMALINK

Isle of Lucy -- I cannot agree with your facts about ObL. But, even if we grant for the sake of argument that the US were repsonsible for the creation of al Qaeda, would that prohibit us from protecting ourselves against their new terrorist attacks? I don't think so.

In fact, I think it's just the opposite. If the US were responsible for the creation of al Qaeda, then we should bear extra responbility for destroying this terrible organization.

Posted by: ex-liberal on September 16, 2007 at 5:22 PM | PERMALINK

And third, yes, we were under attack from al Qaeda and other terrorist organizations in those prior administrations.

In any case, faux-liberal's musings are really intended to derail the discussion. He's not even trying to pretend to stay on topic anymore, is he?

Posted by: PaulB on September 16, 2007 at 5:23 PM | PERMALINK

"would that prohibit us from protecting ourselves against their new terrorist attacks? I don't think so."

This argument is irrelevant for two reasons:

1. It's not even remotely connected to the topic of this thread.

2. What the Bush administration is doing is manifestly not "protecting" us from "new terrorist attacks, which renders your argument moot.

Do try to stay on topic, won't you, dear?

Posted by: PaulB on September 16, 2007 at 5:25 PM | PERMALINK

Back on topic, of course Kevin's question has a simple answer: they'll side with the Bush administration. See, for example, faux-liberal's posts. Q.E.D.

Posted by: PaulB on September 16, 2007 at 5:26 PM | PERMALINK

PalB: What the Bush administration is doing is manifestly not "protecting" us from "new terrorist attacks, which renders your argument moot.

This comment is ambiguous, PaulB. Either you're saying this legal issue isn't a part of the effort to prevent terrorist attacks or you're saying that the Bush Administration hasn't succeeded in protecting us from terrorist attacks.

If you're talking theory and intent, the article mentions "two cases challenging the Bush administration's domestic surveillance programs, including its controversial warrantless wiretapping operation." These clearly relate to the Administration's efforts to prevent terrorist attacks here and abroad.

If you're talking actuality, there have no successful terrorist attacks here in the last 6 years, although there have been successful Islamic terrorist attacks in many other countries. The Bush Administration has announced several potential attacks that have been avoided. So, there's every reason to believe that the Bush Administration has indeed protected us from new terrorist attacks.

Posted by: ex-liberal on September 16, 2007 at 5:35 PM | PERMALINK

"This comment is ambiguous, PaulB."

Not really. But since this is just another attempt to derail the thread and avoid dealing with the topic at hand, and since you have proved time and time again that you're a partisan troll incapable of independent thought, I see no reason to enlighten you.

Now care to actually address the topic of Kevin's post or do you want to just keep playing silly little games?

Posted by: PaulB on September 16, 2007 at 5:50 PM | PERMALINK

There's no reason why the Congress couldn't pass a statute to modify -- or even obliterate -- the common law privilege that the Court created. Judge-made common law gives way to legislatively-created statutes, unless there's a constitutional issue in play.

The court might say there is such an issue with respect to forcing the government to give up secrets. But it wouldn't say there's a constitutional proscription against allowing civil suits to proceed and allowing a jury to make an adverse inference from the government's refusal to produce info on a material point.

But this is all academic, since we don't have a Congress that's worth a shit.

As for the Supreme Court itself -- it's not clear to me that swing-vote Kennedy will be with the government on this one.

Posted by: tom on September 16, 2007 at 5:54 PM | PERMALINK
…there have no successful terrorist attacks here in the last 6 years,….the Bush Administration has indeed protected us from new terrorist attacks. ex-lax at 5:35 PM
On 9-11, I put a statue of Shiva on the shelf. Shiva must love the attention because there have been no further attacks on the US. Oh, wait. Post Hoc Ergo Propter Hoc. The first WTC bombing was on February 26, 1993, the second on September 11, 2001, or 8 ½ years between them. Sycophants like you would suck a snake to defend your Bush.
it's not clear to me that swing-vote Kennedy will be with the government on this one. tom at 5:54 PM
Well, who did he side with on Bush v Gore?

…The remedy of ceasing all recounts was approved by five to four. (Kennedy, O'Connor, Rehnquist,[24] Scalia and Thomas in support[1]; Breyer,[25] Ginsburg, Souter[26] and Stevens opposed)

Posted by: Mike on September 16, 2007 at 7:39 PM | PERMALINK

"Well, who did he side with on Bush v Gore"

While that was certainly a shameful vote, the more appropriate votes of his to examine would be the votes regarding claims of presidential privilege -- Hamdan, habeas corpus, military tribunals, and the like.

Posted by: PaulB on September 16, 2007 at 7:55 PM | PERMALINK

'Question: if the 9th Circuit rules against the government and the Supreme Court takes up the case, where will conservatives side?'

This is a rhetorical question, right? I'm sure you'd be hard-pressed to name three prominent conservatives who are willing to put their alleged conservative 'principles' over their allegiance to Bush and his constitution-shredding.

Posted by: David Bailey on September 16, 2007 at 8:18 PM | PERMALINK

During Watergate, Judge Sirica came up with the best option. He listened to the tapes to see if there was any national security issues. As we know now, there weren't. National security just means the President doesn't want us to know that he is breaking the law.

Posted by: Mazurka on September 16, 2007 at 8:42 PM | PERMALINK

Against the 1953 decision in which the Supreme Court invented an expansive new claim of privilege where none had existed before, surely a clear-cut case of the judicial activism they so often condemn? Or with the government because....because....they really like expansive executive branch powers?

Wait - so you're saying that conservatives are hypocrites? I...I...but...that just can't be!

Posted by: craigie on September 16, 2007 at 10:53 PM | PERMALINK

If the government tells a judge that divulging a certain piece of evidence might endanger national security, then the evidence is excluded. If that means the case itself can't go forward, tough.

IIRC, against a showing of necessity (for the piece of evidence) in a felony criminal case, the privilege fails. I may be totally wrong, and I'm not admitted to the bar yet, so take your grain of salt.

Posted by: Swan on September 17, 2007 at 12:32 AM | PERMALINK

Against the 1953 decision in which the Supreme Court invented an expansive new claim of privilege where none had existed before, surely a clear-cut case of the judicial activism they so often condemn?

Without really getting too much into it, I think you're a little unfair in your criticism here (I'll just say that it's appropriate, in my opinion, for the law of privileges in evidence to be different in the federal and state forums, and for judges to fashion new privileges that are practically necessities in federal subject matter adjudication; however bounds on the exclusion are important, and judges shouldn't balk at figuring out what they should be). I think you're venturing a little afield of what you know.

Question: if the 9th Circuit rules against the government and the Supreme Court takes up the case, where will conservatives side?

All with the gov't, I think. Despite all that's said about their intelligence (sans Clarence Thomas), they're pretty thoughtlessly conservative. Their process is:
1) Which side do I want to win?
2) Can I make a rationale for that side to win?
(answer is probably yes, since I'm so smart)
3) Make rationale.

If it's a really bad decision, there will probably be time to consider the consequences of the decision, and what the decision really (practically) means beyond the circumstances of the case, but those qualms probably won't make it nearly to the actual opinion-writing stage of the process. Rather, they'll be silently, inexplicably and abruptly killed early-on, like a bad feeling meeting a valium pill.

Posted by: Swan on September 17, 2007 at 12:46 AM | PERMALINK

When I first learned about US v. Reynolds, and the fact that, now that the documents were declassified, that the whole thing was the Government trying to avoid responsibility for its negligence, I thought that the privilege would make a good, fun law review topic.... Too bad I didn't realize it 20 years ago.

Posted by: Marc in Denver on September 17, 2007 at 2:44 AM | PERMALINK

If the case is one that is generated by an action of the next president of the United States, Hillary Rodham Clinton, then "against." I would expect the Supreme Court to rule against HRC simply because of the Irrational Clinton Hatred that drives the current republican party. The thought that the current Suprem Court will be doing everything they can to weaken the presidency of HRC makes the current power grab by bush only a temporary thing.

The rethugs will never allow Clinton, or any Democratic President, the power they allowed bush to hold.

Posted by: Ron Charest on September 17, 2007 at 8:46 AM | PERMALINK

Against the 1953 decision in which the Supreme Court invented an expansive new claim of privilege where none had existed before, surely a clear-cut case of the judicial activism they so often condemn?

On second thought, maybe you were just being rhetorical and not expressing an opinion. In which case I apologize.

Posted by: Swan on September 17, 2007 at 10:40 AM | PERMALINK

But, instead of meaning that the defense can't protect the defendant, it's supposed to mean that the prosecution can't go forward (to the extent that evidence would be needed to show guilt.)

Posted by: Neil B. on September 17, 2007 at 11:11 AM | PERMALINK

The so-called literalists or textualists should have a fit trying to find anything in the Constitution which gives the Executive this privilege and yet they are likely to claim it's in there somewhere.

Traitors!

Posted by: MarkH on September 17, 2007 at 11:52 AM | PERMALINK

I hate to say this, because I can't stand the state secrets doctrine, but Kevin is wrong that it started in the Reynolds case in 1953. It goes back at least as far as the Totten case decided during the Civil War.

The Reynolds case expanded it, yes. But it's been around awhile.

Posted by: Dilan Esper on September 17, 2007 at 3:20 PM | PERMALINK




 

 

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