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The Truth About Secrets

The Bush administration's use of the State Secrets Privilege is neither novel nor undemocratic.

12:00 AM, Jun 1, 2006 • By ADAM J. WHITE
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The reason Kadidal and other Bush administration critics tie the privilege to Reynolds is because, they argue, recent developments show that the privilege was abused in Reynolds. In 2000, the Reynolds secrets were declassified and, according to critics, they were shown to contain no secret information. But this criticism misses the point: The government sought to protect this information in 1953 because the mission itself was "highly secret," and that "any disclosure of its mission or information concerning [the aircraft] would be prejudicial to [the Air Force]." Critics today may look at the unclassified information and see nothing noteworthy, but the issue in Reynolds was the value of the information in 1953, not 2005. The Court's deference to the Air Force in 1953 was justified both then and now.

The grounding of the State Secrets Privilege in American Law. Another criticism of the State Secrets Privilege is that it is grounding in British, rather than American, law. In the words of CCR's Kadidal, "[e]ssentially our Supreme Court imported the state secrets privilege from British law." (Or, as he blogged elsewhere, "Conservatives, take note: IT CAME FROM FOREIGN LAW!") The suggestion is that because the privilege is the legacy of monarchical rule, it fails to pay due respect to the coequal legislative and judicial branches' power to supervise the executive.

But this view also stems from the misconception that the privilege originates with Reynolds. Reynolds cited a variety of U.S. cases (including Totten and Burr) and afforded British law only a couple of mentions.

Reynolds noted that a version of the British privilege received "authoritative expression" in the Burr trial, but there Marshall himself recognized "the many points of difference which exist between the first magistrate in England and the first magistrate of the United States," and he calibrated his analysis accordingly, as have the myriad subsequent cases. To suggest that the American version of the privilege was taken from British law is no more or less accurate than saying that any aspect of American law in 1806 was taken from British law. By the time the Court heard Reynolds, the privilege was as American as apple pie.

Is the State Secrets Privilege "Undemocratic"? Kadidal charges that the privilege is "undemocratic," but such criticism turns the nature of litigation and national security on its head.

U.S. courts afford the individual an awesome power: the opportunity to wield the very power of government against his opponent, even when that opponent is the government itself. Nowhere is this more clear than in litigation seeking the vindication of rights, where elections are irrelevant.

But the courts are well aware that abusive litigation of national security issues could (to again quote Robert Jackson) "convert the constitutional Bill of Rights into a suicide pact." To avoid this "dilemma to a free people," the courts have constructed a number of doctrines, rooted in the Constitution's provisions creating the courts specifically and the separation of powers generally, that prevent dangerous judicial usurpation of control over issues entrusted to elected leaders. These doctrines include "standing" (which bars the courthouse doors to all but those who are actually injured by government action) and "the political question doctrine" (which instructs the courts to dismiss cases inherently unfit for judicial resolution), among others. The State Secrets Privilege is yet another one of the constitutional and pragmatic safeguards against inappropriate judicial involvement in matters not properly resolved by the courts.

Such a safeguard is needed nowhere so much as in the nation's self-defense. In the CCR complaint, the plaintiffs' request is nothing less than that the court "enjoin any further such warrantless surveillance" and order that the government disclose all surveillance of their communications. For six plaintiffs to demand that the elected government cease a needed surveillance program is the epitome of undemocratic action.