State Secrets

So, you’ve been waiting for me to say something negative about Obama?  How about this, his administration’s pursuit of the amoral and deplorable Bush secrecy policies with regards to torture is horribly amoral and deplorable.  Perhaps even more so, as I honestly have higher expectations out of Obama and know that he knows better, whereas I’m not sure I could say that about GWB.  Of course, Obama made his mistake a while back in deciding to double-down on the Bush “state secrets” policy.  On Tuesday, the 9th Circuit Court of Appeals just made it worse.  The NYT editorial on the matter sums up this sorry state of affairs as well as anything:

Five men who say the Bush administration sent them to other countries to be tortured had a chance to be the first ones to have torture claims heard in court. But because the Obama administration decided to adopt the Bush administration’s claim that hearing the case would divulge state secrets, the men’s lawsuit was tossed out on Wednesday by the full United States Court of Appeals for the Ninth Circuit. The decision diminishes any hope that this odious practice will finally receive the legal label it deserves: a violation of international law…

The Ninth Circuit was sharply divided, voting 6 to 5 to dismiss the case and overturn a decision to let it proceed that was made by a panel of three circuit judges last year. The majority said it reached its decision reluctantly and was not trying to send a signal that secrecy could be used regularly to dismiss lawsuits. But even though it is public knowledgethat Jeppesen arranged the torture flights, the majority said any effort by the company to defend itself would pose “an unacceptable risk of disclosure of state secrets.”

That notion was demolished by the five-judge minority that dissented from the ruling, pointing out that the plaintiffs were never even given a chance to make their case in court using nonsecret evidence, including a sworn statement by a former Jeppesen employee about the company’s role in what he called “the torture flights.” The case should have been sent back to the district court to examine which evidence was truly secret; now it will have to be appealed to a Supreme Court that is unlikely to be sympathetic to the plaintiffs.

And, the key point for me:

All too often in the past, the judges pointed out, secrecy privileges have been used to avoid embarrassing the government, not to protect real secrets. In this case, the embarrassment and the shame to America’s reputation are already too well known.

In fact, not until decades after the wrong-headed decision in US v. Reynolds, did we learn that the government invoked “state secrets” simply to CYA rather than because any matter of secrecy was at stake.  The whole thing really just disgusts me.  What disgusts me most, is how few people actually understand and give a damn.

Oh, and if the Tea Partiers actually cared about preventing the extension of federal government power, rather than being angry, mis-informed blowhards, they’d be out in the streets for this.

About Steve Greene
Professor of Political Science at NC State

One Response to State Secrets

  1. John says:

    More evidence that our country could easily slip into a fascist state.

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