One the fundamental properties of a working legal system is that illegal activities are punished. The Bush administration, however, employs state secrets privilege as an effective method of covering for clearly illegal activities such as the warrantless wiretapping of US citizens. This exploit can be repeated as often as the administration fancies, with no direct legal check or recourse.
The invocation of state secrets privilege was originally use to prevent disclosure of security-critical information and has since expanded to wholesale prevention of court proceedings. If the administration can plausibly argue that evidence or proceedings would jeopardize critical security information judges often accept that argument without verifying its merit. Nothing prevents the administration from falsely invoking state secrets privilege other than the consciences of those involved. The first assertion of state secrets was a fraudulent claim that served only to cover for government negligence. Not a strong precedent.
Wired.com live-blogged the 9th Circuit hearing on AT&T and NSA spying, providing a partial transcript. A key passage:
"Litigating this action could result in exceptionally grave harm to national security in the United States," says Deputy Solicitor General Gregory Garr.
Judge Harry Pregerson (left, in file photo) suggests the government is asking the courts to "rubber stamp" the government's claim that state secrets are at risk "Who decides whether something is a state secret or not? ... We have to take the word of the members of the executive branch that something is a state secret?"
Garre counters that the courts should give "utmost deference" to the Bush administration.
The documentation in question is so secret that not even the judges are privy to it. (Or perhaps they simply don't bother to ask) The judges therefore have no rational basis to evaluate the legitimacy of state secrets claims. While they can reject implausible arguments ("what I ate for lunch is a state secret") they cannot detect or reject plausible but false arguments. ("The details of this plane crash are a state secret") It is a system based not on accuracy but on trust.
Why anyone would grant "utmost deference" to the Bush administration is a mystery. The Bush administration has invoked state secrets privilege liberally, using those claims to prevent suits where guilt is confirmed by administration officials, as in the case of Khalid El-Masri
The Bush administration has already admitted to violating the law with regard to warrantless wiretapping:
The New York Times reported that Bush had authorized the National Security Agency to listen in on the phone calls of thousands of people in this country without getting permission from a court. Bush's lawyers maintained that the president had the inherent authority as commander in chief to protect national security through secret spying. The account was confirmed by the Los Angeles Times.
The defense the Bush administration put forth was laughable and the program was declared unconstitutional. The execution of that program was (and is) illegal, yet there has been no punishment for willful violation of the law.
For activities to be illegal has no meaning if punishment of those illegal activities is impossible, which it is if state secrets privileges can be repeatedly and successfully invoked.
One of the primary goals of the Bush administration has been the expansion of executive power. Not only by laws (which can be revoked), but by executive orders, self-serving theories of the "unitary executive" and the "energy of the executive" -- and by blatant law-breaking. There is no greater power than that which is exercised successfully in defiance of the rule of law rather than according to it.
Should the latest claims of state secrets privilege be upheld the message will be clear: the Bush administration is free to openly and brazenly violate the law by claiming, without evidentiary justification, that national security is at stake. In essense the legal system will bow to the word of proven liars rather than to its responsibilities under the law.
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