Reynolds v. USA: 50 y.o. case might reopen: National Security Privilege

[BostonTeaParty04]

Good morning.


I just read a fascinating article in the LA TIMES about the reopening of a 1949 case (us v. reynolds) that basically set the legal precedence for the military/US govt to assert privilege without judicial oversight if they claim 'national security or state secrets' are at risk.

Turns out that over 50 years after the US Supreme Court granted that executive privilege, that the papers the govt would not turn over to the plaintiffs under the claim that it would jeopardize 'national security', have been declassified.

And guess what? The Air Force lied. There were no state secrets in an accident report. There was no issue of a risk to national security.

Long story short (the article, part 1, is 13 pages long in my word processor), the daughter of an engineer killed in a b29 accident has filed a request with the USSC to reopen the matter. Problem is, they had to file a motion asking the USSC for special leave to hear their argument on revisiting this executive privilege case. Knowing our present USSC, they will probably deny their motion.

But I suggest that this case warrants a review by the USSC. The govt got out of providing accident info without any judicial review whatsoever of the basis for their claim to NOT provide information to harmed citizens. And this has been the precedence since the early 1950s.

This plays into the bush admin's CONSTANT claim of "we can't tell you jack shit because of national security."

I love the Jersey Girls; I yes I do. But their grievances against the USA are hanging on THIS case... this case that will determine the fate of everyone given the Patriot Act mentality of our govt.

I mean, look at those absurd 28 redacted pages in the congressional jt comm investigation of 911. The bush administration claims ONLY that it would 'embarrass' another country. And those papers remain classified to this day!!!

We must write LTTEs, talk to our friends (and foes), campaign for the democrats, do everything we can to oust the occupiers of the white house. BUT I also think we need to pay very, very close attention to the reopening of US v. Reynolds in the Supreme Court, and make sure it gets heard, but MORE that we get this case HIGHLIGHTED in the public eye! Don't let the S.Ct screw us again.... it will be so easy for them to just DENY the motion to rehear the matter, and no one will be the wiser.

A new ruling in this case would clip the executive's feathers big time.

And, you know, I honestly think Sandra Day O'Connor has this intense desire to clip some of the feathers of the thugs she installed into the white house.

Here is the link to the article (it's on yahoo today, so you don't need to register with the LA TIMES (part 2 comes out tomorrow.....which will probably go into more detail of HOW the US govt lied):

http://story.news.yahoo.com/news?tmpl=story&u=/latimests/20040418/ts_latimes/howthedeathofjudysfathermadeamericamoresecretive&e=4

***note, the article reads like a wonderful novel.... great sunday morning reading!!! Can't believe it was written by a staff writer! The guy should get a pulitzer.

***2nd note: I will go through the article and post some relevant snips...back soon!

[aquart]

1. Thank you. I never heard of this. Fascinating.

[BostonTeaParty04]

3. It really is quite fascinating.... and crucial to the future of democracy

IMO...

I can just imagine John Ashcroft's reply brief on this one. Oh boy. A doozy in the making.....

[BostonTeaParty04]

2. Snips from Article .. hard to choose which 4 paragraphs to use!

The clerk read on: At the heart of the case is a set of reports the Air Force prepared on the accident…. The Air Force refused to produce these reports, even to the district judge…. The United States took the case to this Court … contending that the reports contained "military secrets" so sensitive not even the district court should see them…. This Court took the government at its word, and reversed. But, it turns out that the Air Force's affidavits were false. The Air Force recently declassified the accident reports. They include nothing approaching a "military secret." … In telling the Court otherwise, the Air Force lied…. It is for this Court in exercise of its inherent power to remedy fraud, to put things right.

snip

Although U.S. vs. Reynolds 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.

U.S. vs. Reynolds' ramifications reach beyond civil law: By encouraging judicial deference when the government claims national security secrets, it provides a fundamental basis for much of the Bush administration's response to the Sept. 11 terrorist attacks, including the USA Patriot Act and the handling of terrorist suspects. Although some judges and the Supreme Court may be starting to resist, the "enemy combatants" Yaser Esam Hamdi and Jose Padilla, for many months confined without access to lawyers, have felt the breath of Reynolds. So has the accused terrorist Zacarias Moussaoui when federal prosecutors defied a court order allowing him access to other accused terrorists. So have hundreds of detainees at the U.S. Navy (news - web sites) base at Guantanamo Bay, Cuba, held for more than two years without charges or judicial review.

By asking the Supreme Court to "remedy fraud," Judy Palya Loether and others in the crash victims' families were taking dead aim at the factual foundation of the state secrets privilege. Long ago, Judy's mother and two other widows had tried to challenge the power of the federal government. Now here came the families once again.

BIG SNIP

Chief Justice Vinson acknowledged all this in a conclusion that could have been written today. "In the instance we cannot escape judicial notice that this is a time of vigorous preparation for national defense. Experience in the past war has made it common knowledge that air power is one of the most potent weapons in our scheme of defense, and that newly developing electronic devices must be kept secret if their full military advantage is to be exploited in the national interests. On the record before the trial court, it appeared that this accident occurred to a military plane which had gone aloft to test electronic equipment. Certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission."

At bottom, Vinson's opinion represented an act of faith. We must believe the government, he held, when it claims this B-29 accident report would reveal state secrets.


******problem is: the govt lied! The govt ended up settling with the widows, and why not? They got their precedence to withhold information outside of judicial review on the basis of "we have to have faith in our govt that they won't abuse this privilege." Well, we are seeing the ramifications of THAT today.....

The Jersey Girls are heros. But so is this Ms. Payla. We have to hold the USSC's feet to the fire on this one....