From Talking Points Memo:
Earlier this week, we flagged an interesting piece in the New York Times about the U.S. government invoking the state secrets privilege to block evidence in lawsuits against a contractor who had duped the U.S. government into spending millions on what many now consider to be fake counterterrorism technology.
According to another recent report, the U.S. invoked state secrets to block a personal injury lawsuit by a CIA employee who alleged that environmental contamination in his home made his family sick. That got us wondering about what else the U.S. has invoked state secrets for--particularly under the Obama administration, which had pledged to end abuses of the privilege.
"Numbers aside, there is a great deal of continuity between the Bush and Obama administrations," Steven Aftergood, a government secrecy expert with the Federation of American Scientists, told us. "And there is no case where the Obama administration has rescinded a claim of state secrets privilege that was advanced by the Bush [administration]."
Showing posts with label states secrets. Show all posts
Showing posts with label states secrets. Show all posts
Friday, February 25, 2011
Friday, December 10, 2010
The World Post-Wikileaks
A discussion in the NYT:
In the tempest that has followed the release of a trove of secret government files by WikiLeaks, officials and security experts are trying to figure out how to stop such a large-scale breach from happening again.
While Julian Assange, the Wikileaks founder, defended publication of the documents as a victory for openness, national security officials see a dangerous precedent.
Even if WikiLeaks itself can be controlled, have the gates opened to a flood of similar enterprises and even more damaging disclosures?
Perhaps it was inevitable that once the web was developed it would be impossible to keep secrets anymore.
- Wikileak's War on Secrecy.
In the tempest that has followed the release of a trove of secret government files by WikiLeaks, officials and security experts are trying to figure out how to stop such a large-scale breach from happening again.
While Julian Assange, the Wikileaks founder, defended publication of the documents as a victory for openness, national security officials see a dangerous precedent.
Even if WikiLeaks itself can be controlled, have the gates opened to a flood of similar enterprises and even more damaging disclosures?
Perhaps it was inevitable that once the web was developed it would be impossible to keep secrets anymore.
- Wikileak's War on Secrecy.
Thursday, September 9, 2010
Lawsuits, Torture and States Secrets
Here's an illustration of several principles we'll cover in both 2301 and 2302: An appeals court has ruled that the need for secrecy outweighs the right of alleged torture victims to sue an executive agency. The lawsuit itself might reveal information the agency -- the Central Intelligence Agency -- would rather not have revealed.
Here's where it applies:
It's simple checks and balances, except that in this case the judiciary has not checked the executive, it has in fact enhanced its strength. In a sense, the judiciary has rubber stamped a further expansion of executive power.
It involves an interpretation -- loose certainly -- of executive power, and whether the executive has the right to keep its actions secret. There is nothing about secrecy written in the Constitution, but there had always been an assumption that secrecy -- like executive privilege -- is central to executive effectiveness. The "states secrets doctrine" was established for the executive by the Supreme Court in a court case: United States v. Reynolds. Again, this is an expansion of executive authority established by how the Supreme Court decided to interpret constitutional language. Executive authority can also be expanded by Congress, in this case the creation of the CIA, and the intelligence community in general after World War Two. Congress effectively authorized the creation of a permanent peacetime military.
It also involves the rights of individuals (civil liberties), in this case of course the denial of such rights. We can look at those rights in two ways. One has to do with 4th Amendment rights against unreasonable searches and seizures. Interrogation -- whether by torture or otherwise -- is an attempt to seize evidence. The 5th Amendment right against self-incrimination was specifically established to prevent torture or similar coercive means to obtain information. The other right has to do with access to the courts, the right to sue. This is a form of the right to petition for a redress of grievances. In this case the right to sue has been considered less important that the ability of government to preserve state secrets.
A final point regards judicial process. Since this was an appellate court decision, it is likely to be appealed to the Supreme Court. They will have the last word on whether this, and other similar lawsuits can go forward. If they cannot it may be the same as stating that the executive does in fact have, if not a right to torture, the ability to do so without a substantive backlash against it.
Here's where it applies:
It's simple checks and balances, except that in this case the judiciary has not checked the executive, it has in fact enhanced its strength. In a sense, the judiciary has rubber stamped a further expansion of executive power.
It involves an interpretation -- loose certainly -- of executive power, and whether the executive has the right to keep its actions secret. There is nothing about secrecy written in the Constitution, but there had always been an assumption that secrecy -- like executive privilege -- is central to executive effectiveness. The "states secrets doctrine" was established for the executive by the Supreme Court in a court case: United States v. Reynolds. Again, this is an expansion of executive authority established by how the Supreme Court decided to interpret constitutional language. Executive authority can also be expanded by Congress, in this case the creation of the CIA, and the intelligence community in general after World War Two. Congress effectively authorized the creation of a permanent peacetime military.
It also involves the rights of individuals (civil liberties), in this case of course the denial of such rights. We can look at those rights in two ways. One has to do with 4th Amendment rights against unreasonable searches and seizures. Interrogation -- whether by torture or otherwise -- is an attempt to seize evidence. The 5th Amendment right against self-incrimination was specifically established to prevent torture or similar coercive means to obtain information. The other right has to do with access to the courts, the right to sue. This is a form of the right to petition for a redress of grievances. In this case the right to sue has been considered less important that the ability of government to preserve state secrets.
A final point regards judicial process. Since this was an appellate court decision, it is likely to be appealed to the Supreme Court. They will have the last word on whether this, and other similar lawsuits can go forward. If they cannot it may be the same as stating that the executive does in fact have, if not a right to torture, the ability to do so without a substantive backlash against it.
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