Tuesday, April 20, 2004

A must read

The Los Angeles Times is running a series of articles on US vs. Reynolds, a case that while it
wasn't familiar to the public, law students everywhere knew it to be the landmark 1953 ruling that formally established the government's "state secrets" privilege - a privilege that has enabled federal agencies to conceal conduct, withhold documents and block troublesome civil litigation, including suits by whistle-blowers and possible victims of discrimination.
Sibel Edmonds, for example.

The article is much too long to summarize easily, but the salient facts are these: The claim arose in the course of the government defending itself against a claim of negligence for the deaths in an airplane accident. The government refused to release its report on the accident, claiming that to do so would damage national security; in fact, it was so secret that it couldn't even be released to the judge to view in chambers.

On March 9, 1953, the Supreme Court delivered its opinion. By a 6-3 majority, it found that the government had made a valid claim of privilege against revealing military secrets, a privilege "well established in the law of evidence." In fact, it was not so established, except in common law. It was this ruling that codified it into practice.

It now turns out that the government case was a complete lie. There was nothing secret in the accident report and the equipment on board being tested did not in any way figure in the crash and was not mentioned in the report. What the report showed, rather, was that the plane had experienced problems before and that it was not properly checked out before the flight. That is, the report showed the very negligence the government was denying.

The whole structure of the "state secrets" privilege is built on lies.

Read the article. Read it.

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