050 The Erickson Report for March 17 to 30, Page Four: Two Weeks of Stupid: Clowns and Outrages [the Outrage]

050 The Erickson Report for March 17 to 30, Page Four: Two Weeks of Stupid: Clowns and Outrages [the Outrage]

Moving on the Outrage, we have a real one.

In two decisions announced the end of the first week in March, the Supreme Court upheld and potentially expanded the pernicious “state secrets” privilege, a "privilege" that allows the Executive Branch to keep secret any information and so beyond the reach of legal review any case in which it claims pursuing the matter could involve "national security concerns," a protection to the point where the government will argue that even if allegations of law breaking or constitutional violations are true, they are exempt from judicial review.

Technically, the courts have to accept the assertion of this so-called privilege, but in practice courts tend to be extremely deferential to the security state.

One of the two cases was United States v. Zubaydah, where a divided court ruled that the government did not have to disclose information about its torture program at CIA “black sites” to a plaintiff who is currently detained in Guantánamo Bay. The other was United States v. Fazaga, where a unanimous court ruled that a case against the FBI for unlawful surveillance of mosques should not proceed.

What makes this the true outrage that it is that the state secrets privilege is the result of government lies. It was invented in its modern form by the Supreme Court in the 1953 case United States v. Reynolds.

In 1948, a B-29 crashed, leading to the deaths of three RCA employees on board. The families sued, claiming negligence.

The government refused to release its report on the accident, claiming that to do so would damage national security; in fact, what had been being done on that flight was so secret that it couldn't even be released to the judge to view in chambers.

The Supreme Court ruled that the government had made a valid claim of privilege against revealing military secrets, a privilege "well established in the law of evidence." Which it wasn't. It was part of common law since the 19th century, but it was this ruling that codified it into practice.

Here's the thing: When the accident report was finally declassified in 2004, it proved the government has totally lied. 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 even 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 proved the very negligence of which the government was accused and it claimed "national secrecy" to cover up its own guilt.

The entire state secrets privilege is built on a lie. Which makes its use to conceal torture and spying the clearest sort of outrage.