Abuse of Privilege

When someone asks you to give them an example of the Executive Branch of our government abusing the privileges granted them to protect the public, be sure to point to this latest and stunning example by the Bush Administration:

From AP via TPM:

Three telecommunications companies have declined to tell Congress whether they gave U.S. intelligence agencies access to Americans' phone and computer records without court orders, citing White House objections and national security.

Director of National Intelligence Mike McConnell "formally invoked the state secrets privilege to prevent AT&T from either confirming or denying" any details about intelligence programs, AT&T general counsel Wayne Watts wrote in a letter to the House Energy and Commerce Committee.

Qwest and Verizon also declined to answer, saying the federal government has prohibited them from providing information, discussing or referring to any classified intelligence activities.

I'll explain more below about the derivation of this privilege and how it is usually invoked, but the point is this: Do we really think that the State Secrets Privilege was invented in order to keep members of Congress from knowing our secrets?

Of course it wasn't. But that is exactly how it is being used.

The State Secrets Privilege (invented by SCOTUS in 1953) is being used by the Executive Branch to thwart oversight by Congress, particularly the oversight being done by Congressman John Conyers' (D-MI) House Committee on the Judiciary. Just as bad, if not worse, is the real possibility that it's being invoked in an attempt to thwart the criminal justice system in the appeals case of US v. Nacchio.

Or put another way, let's please ask DNI McConnell who are the leakers/traitors in Congress he is worried about? Is it maybe these guys?

So far, the White House has refused comment, but here's the contact number listed on the DNI website,703-733-8600. Maybe you want to give them a call and ask.

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On background of the State Secrets Privilege:

The State Secrets Privilege was the result of a 1948 plane crash of an Air Force B-29 bomber in Georgia. Three widows of airmen killed in that crash sued the federal government for information about the crash site. The Air Force asserted in the landmark case, US v. Reynolds (345, US1, 1953) , that there are "military matters which, in the interest of national security, should not be divulged," not even to a federal court. The Supreme Court agreed and provided the basis for what is now known as the State Secrets Privilege.

At the heart of the matter now, is the issue of scope. What is the privilege meant to keep secret and from whom?

Reynolds makes no mention whatsoever of using privilege to keep national security matters secret from members of Congress. Further, Jonathan Turley, Georgetown Law professor and plaintiff's counsel in a 1996 case which visited the issue of privilege raised in Reynolds (Frost v. Perry, 1996), makes clear in this interview with NPR (2004), that the high court clearly means to intepret the State Secrets Privilege in the narrowest terms possible:

What the court said was that trial judges needed to consider privilege arguments by the government, but the court also said that courts should struggle to remove only that evidence that clearly would violate national security. So the case itself really didn't give a hint of what it would become, because over the decades that followed, courts began to simply allow the privilege to be used almost unilaterally. A lot of district judges, frankly, don't want the headache of national security cases. And so when the government comes in with a silver bullet and says dismiss the whole case, a lot of judges are not complaining much.

Recently, US v. Reynolds has been challenged in court. Why? Because declassified documents obtained by the widows' heirs show that the Air Force lied in its affidavits. There were no issues of national security whatsoever in any Air Force documents relating to the crash. The reports, denied to the widows, did say however, that the aircraft was unsafe to fly. As a result, the widows' heirs petitioned the Supreme Court for a Writ of Error Coram Nobis to remedy fraud upon the court. In this case, Herring v. United States, the petitioners ask that the court vacate its original ruling.

Unsurprisingly, SCOTUS declined to grant certiorary. The petitioners then filed in federal district court. The Justice Department, under Ashcroft and then Gonzales, moved to dismiss. The case was argued on July 15, 2005, before the Circuit judges of the Third District of the United States. The appeal was denied on September 25, 2005, with the opinion being written by Circuit Judge Aldisert for the two person majority. The other judge in the majority was Samuel Anthony Alito. In 2006 Judge Samuel Anthony Alito became an Associate Judge of the Supreme Court of the United States.

To be clear, the petitioners did not seek to change the laws or ruling for which Reynolds has been foundational. But in thinking it over, is there a better metaphor for the way the Bush Administration views the rule of law than this? They are abusing a privilege, which is fundamentally based on a lie perpetrated by the government to avoid responsibility, in order to keep things secret from Congress.

The Supreme Court's willful blindness to correct its mistake has led to an unprecidented expansion of the Bush Administrations's use of the State Secrets Privilege, and the predictable abuse of privilege by them which has followed. The privilege is now a rubber stamp for keeping anything secret the Bush Administration wants covered up, whether that which is being covered up is criminal, or merely embarassing.

It's past time for the courts to correct this wrong and spell out precisely what the State Secrets Privilege is and what co-equal branch of government reviews it. Since the Supreme Court invented it, surely it fall upon them to explain and interpret it more fully.

In short, the question before the court is this: What information is the State Secrets Privilege meant to keep secret, from whom, and what recourse does the public have to prevent is willful abuse by another branch of government?

cross posted at Daily Kos, under the title, "The Bush Administration Abusers.