Limit limit

The Shrub team already has the well-deserved reputation as being among the most if it is not the most secretive administration in US history. Certainly no administration in my memory - no, not even Nixon's - has sought so hard and so consistently to maintain the public's right to not know.

One of the less-noted but still important parts of this effort has been to close off the courts to those who challenge government misconduct ranging from punishing whistleblowers to supporting torture. The method chosen is known as the "state secrets privilege," and what is does is enable the government to assert that a legal action against it should be dismissed because allowing it to proceed would jeopardize national security. This is a legal doctrine, not law, and while its roots go back to the early days of the US, most legal scholars seem to agree that it became enshrined as a precedent in United States v. Reynolds (1953). In that case, three widows of civilian engineers killed in 1948 when a B-29 crashed during a mission to test some equipment lost their attempt to have the Air Force release the accident report because, the Air Force insisted and the Supreme Court agreed, release would threaten national security. At the time, the Court ruled that for there to be a valid claim of privilege to consider,

[t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. ...

Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case.

That is, the Court called for a typical legalistic balancing act between the rights of the plaintiffs to have their case heard and the idea of the government's need to keep some secrets. Unfortunately, over the years the courts seem to have forgotten that part, remembering only the first part, i.e., the requirements for there to actually be a claim. Thus, last May, Jonathan Turley, a professor at George Washington University Law School, told NPR's "On the Media"

[t]he 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. ...

[F]rankly when United States/Reynolds comes around, you pretty much know the government's on the ropes. This is the thing that they pull out when their case is not going well or they found something enormously embarrassing in the file. I've actually been in a courtroom where Reynolds was invoked, and people laughed. They actually invoked the privilege over a manual that was reportedly available on the internet, and reporters in the room were literally holding them up so the judge could see.

Even so, he reported, the judge granted the government's motion.

Echoing that, Jill Hasday, who teaches national security law at Vanderbilt University, was able to tell the Chicago Tribune on Thursday that in general, "the court is very deferential. If the executive says it's a secret, the court basically buys it."

Over the years [the Los Angeles Times reported last April], the types of information protected by the state secrets privilege have included: alleged collusion between defense contractors; alleged malfeasance and incompetence by contractors; alleged civil rights violations by the FBI and CIA; the purchase, insurance and inspection records of a government mail truck involved in an accident; and an FBI file on a sixth-grade boy who received a large amount of mail from foreign countries because he was writing an encyclopedia of the world as a school project.

In 1975, a group of Vietnam War protesters claimed the FBI and CIA conducted intelligence operations against them, but they had to drop the lawsuit after a district court upheld the government's state secrets claim. In 1990, families of 37 crew members killed when Iraqi missiles struck the frigate Stark sued contractors responsible for the ship's antimissile system, but the United States again successfully invoked the state secrets privilege. In 2000, a similar claim of privilege stopped a gender discrimination lawsuit filed by a CIA employee. In early 2003, yet another claim killed a suit filed by a senior engineer who'd maintained that a defense contractor had submitted false test results on an antimissile vehicle.

(Note: The link is to a blog that quoted the passage; the original article is now in a for-pay archive.)

Then there was the January, 1998 decision by the Ninth Circuit Court of Appeals to affirm

the dismissal of a case alleging violations of hazardous waste laws at the Groom Dry Lake Air Force base because the common-law "state secrets" privilege makes discovery and trial impossible.

In upholding the dismissal of former federal employees' claims that they were poisoned while working at the classified military facility, also known as Area 51, the court ruled that the "government may use the state secrets privilege to withhold a broad range of information."

The appeals court emphasized that the judicially created state secrets privilege is "absolute." Even seemingly innocuous information may justify invoking the privilege to prevent all disclosure if it is part of a classified "mosaic," the appeals court said.

Once the claim of privilege has been invoked and categories of privileged information have been identified, the federal government is not required to explain why each document requested affects national security, the appeals court wrote.

Note that the court has elevated the claim of privilege from part of a "balancing act" to one that is "absolute" and once it has been "invoked" (not accepted by the court, invoked by the government) there is no need for the government to justify it.

And what was the nature of the vital information, these pieces of a "mosaic" of classified data that would do such damage to our national security? It was "security sensitive environmental data"- to be specific, the nature of hazardous materials the government burned in open trenches on the site in the late 1970s and early 1980s which resulted in the workers suffering respiratory distress, cancers and skin rashes. Put more bluntly, the government is free to poison workers because revealing the nature of the poison could maybe possibly theoretically by some stretch of the imagination provide a piece of a "mosaic" which could maybe possibly theoretically by some stretch of the imagination be helpful to some enemy or another. Somehow.

So let's be clear about this: The Shrub team is far from the first to make use of the state secrets privilege. But it been far from shy, has even been aggressive, about asserting it to cover its tracks. Turley said that

Attorney General Ashcroft took every possible case to muster in, in support of his national security efforts. Well, Reynolds was ready made for that. And now Reynolds has virtually become a stamp. I mean any case that involves remotely the military or national security or, you know, poultry regulations - any type of civil liberties claim that's been brought since 9/11 has run right into Reynolds, and the government's come forward and said look, we can't tell you whether we're beating detainees, 'cause it would reveal state secrets.

Two important cases which the Shrubberies have tried to kill with the privilege are now under appeal. One is that of Sibel Edmonds, whose case I mentioned in April and again, more extensively, in August. She was the translator for the FBI who was fired in 2002 after repeatedly complaining to superiors about security breaches and misconduct in the program, including documents either mistranslated or not translated at all. When she challenged her dismissal in court, former Attorney General John Burntfarm got the case dismissed by claiming state secrets. The ACLU is handling her appeal.

"The government should be applauding, not punishing, employees who risk their jobs to expose threats to our nation’s security," said ACLU Associate Legal Director Ann Beeson. "If the lower court ruling stands, many thousands of government employees will be unprotected from retaliatory dismissal, with no recourse in the courts, and others will be even less willing to risk exposing misconduct or corruption."

But of course, concealing misconduct or corruption may be (may be?) exactly the intent. And some of that misconduct goes well beyond a retaliatory firing of someone for complaining about incompetence. The Chicago Tribune article linked above reports that

[t]he government is invoking the privilege in an attempt to wipe out the heart of a lawsuit that seeks to examine rendition, the secretive and controversial practice of sending terror suspects to foreign countries where they might be tortured.

The case is that of Maher Arar, described by CBC News (Canada) as

a Canadian citizen born in Syria in 1970, [who] came to Canada in 1987. After earning bachelor's and master's degrees in computer engineering, Arar worked in Ottawa as a telecommunications engineer.

On a stopover in New York as he was returning to Canada from a vacation in Tunisia in September 2002, U.S. officials detained Arar, claiming he has links to al-Qaeda, and deported him to Syria, even though he was carrying a Canadian passport.

When Arar returned to Canada more than a year later, he said he had been tortured during his incarceration and accused American officials of sending him to Syria knowing that they practise torture.

I posted about Arar's case in November 2003 and again last July.

Arar's case cuts to the heart of the evil practice known as "rendition" where a suspect is deported to a country - in this case Syria - where they can be tortured in ways that US law does not allow. It involves a "secret charter service" run by the CIA, Newsweek has found, which even grabs people off the street to disappear them to some secret prison somewhere, somewhere where the usual standards of human conduct do not apply. Writing in the February 14 issue of The New Yorker, Jane Mayer says that

[w]hat began as a program aimed at a small, discrete set of suspects - people against whom there were outstanding foreign arrest warrants - came to include a wide and ill-defined population that the Administration terms "illegal enemy combatants." Many of them have never been publicly charged with any crime.

She notes that a 1998 federal law declares that it is "the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture...."

The Bush Administration, however, has argued that the threat posed by stateless terrorists who draw no distinction between military and civilian targets is so dire that it requires tough new rules of engagement. This shift in perspective, labelled the New Paradigm in a memo written by Alberto Gonzales, then the White House counsel, "places a high premium on ... the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians" ... [On September 16, 2001], Vice-President Dick Cheney, reflecting the new outlook, argued, on "Meet the Press," that the government needed to "work through, sort of, the dark side."

Another meaning of "dark" is "out of the light" and that's what the White House is trying to do to Edmonds and Arar: keep the truths their suits can reveal - truths about incompetence, about failures, about cruelties, about, as the man said, "working through the dark side" - out of the light.

(Sidebar: Wikipedia has a good item on Arar. And there is an inquiry, at least one of sorts, going on in Canada about officials' involvement in Arar's seizure and imprisonment. The Toronto Globe & Mail reports that Arar is pushing to get documents released that the government is trying to hold back.)

The lengths to which the WHS* will go is amazing. Consider that William G. Weaver and Robert M. Pallitto of the University of Texas at El Paso reveal that

[i]n November 2001 President Bush issued executive order 13233 that would permit former presidents to independently assert the state secrets privilege to bar disclosure of records generated during their tenure.

More than that, the Bush order would make the state secrets privilege hereditary, like some divine right of kings, enabling the heirs of deceased presidents to assert the privilege after their death.

"This is a power heretofore unrecognized either in courts or politics," Weaver and Pallitto observe.

So not only do they want to lock up the evils they perpetrate now, they want the power to keep them locked up for as long as they want, even yea, unto the seventh generation, I suppose they would say.

What makes all this something that just makes you want to shake your head in astonishment - what's the line, "I hasten to laugh at everything, for fear of being obliged to weep" - is that it's highly likely that the Reynolds decision was based on false claims by the government. It turns out when the documents were finally declassified in 2000 that the accident report - which the Justices never actually saw, having taken the word of the Air Force as to the significance of its contents - had no material information about the plane's mission or the secret equipment being tested, but did contain information that the plane had suffered numerous safety problems and was considered unsafe to fly.

The documents ascribe fault for the crash to the Air Force's failure to comply with orders to modify the B-29's exhaust assembly, the apparent source of the fire that caused the crash. In addition, the service was at fault for failing to brief the civilian contractors that were on the flight in proper emergency procedures....

That is the "secret" the Air Force was trying to conceal. In light of that new information, one surviving widow and descendents of the others asked the Supreme Court to reconsider its decision. The Court rejected the plea in a sentence in June, 2003. So the case was refiled in Federal District Court in October, 2003. In September, 2004, District Court Judge Legrome Davis dismissed the suit. The decision is painful to read: Judge Davis reached, lurched, and twisted in a way that would have been remarkable for a gymnast or a high-platform diver - but is disgraceful for a judge - to not only uphold the government's case but actually to make its case for it.

The case, now known as United States v. Herring, has gone to the Third Circuit Court of Appeals. But I can't say I hold out much hope for sanity. Turley noted that

[t]he troubling thing about these filings is the apparent lack of recourse, when you find that the government lied - not in a small way, but in a way that created this massive doctrine, and if the district court dismisses this action, then there really isn't any deterrent to the government from lying. I mean it - even when you can wave around a memo in which they clearly misled the Supreme Court of the United States, there's no recourse. Well, that's going to send one hell of a message to Justice Department attorneys.

And one they are droolingly glad to hear.

*WHS = White House sociopaths