State-secret overreach-For too long, judges allowed government to hide mistakes behind nat'l securit

[babylonsister]

http://www.latimes.com/news/printedition/opinion/la-op-siegel16sep16,1,7868113.story?track=rss&ctrack=3&cset=true

State-secret overreach


For too long, judges have allowed the government to hide mistakes behind national security.
By Barry Siegel
September 16, 2007


snip//

Over time, the desire to protect military secrets has started to look a good deal like the impulse to cover up mistakes, avoid embarrassment and gain insulation from liability.

How to know, though? Most often, judges rule blindly, without looking at the disputed documents underlying the state secrets claims. Since 1993, they have required in-camera review in less than an eighth of cases. They choose, instead, to trust the government -- the ultimate act of faith. They opt for deference; deference lets them off the hook. No one wants to be the judge whose decision leads to an apocalyptic disaster. Better to say, we're not equipped, we can't tell whether it implicates national security, we need to leave this to those who know. This is understandable: In an ominous world full of national security threats, it is hard indeed to deny the government.

Yet the Bush administration may finally have escalated the dubious use of the state secrets privilege to a point of resistance. In the summer of 2006, U.S. District Judge Vaughn R. Walker in San Francisco and District Judge Anna Diggs Taylor in Detroit ventured to deny government state secrets claims in the domestic surveillance and eavesdropping cases. "It is important to note that even the state secrets privilege has its limits," Walker wrote. "While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. . . . To defer to a blanket assertion of secrecy here would be to abdicate that duty."

snip//

Hearing the deputy solicitor general talk of "ultimate deference" due the executive branch, Pregerson asked: "What does 'ultimate deference' mean? Bow to it?"

That, above all, is the question before the members of the 9th Circuit panel. As they ponder, they would do well to consider Judge Kirkpatrick's response to the same question in August 1950 -- and to what we now know about the government's state secrets claim those many years ago.

Declassified half a century later, the disputed B-29 accident report turned out to tell a tale of military negligence -- maintenance failures, missing heat shields, cockpit confusion -- not one of national security secrets about a radar guidance system. The government, it seems, was seeking to cover its embarrassment and hide its mistakes, not to protect the country's security.

This revelation has helped fuel calls for reform by legal scholars, public interest groups and the American Bar Assn. It should also inspire the 9th Circuit panel in the current cases to think long and hard before trusting the government or accepting its claims. In a system of three separate but equal powers of government, it's time for the judges to do their job.

[Mnemosyne]

1. Needs

:kick:

[Trillo]

2. What is the legal process in such a case?

Does Renolds vs. US remain on the books as valid law?

[hootinholler]

3. Sibel Edmonds and other cases come to mind.

The abuse of state secrets has been rampant from the beginning of this maladministration.

-Hoot