Sunday’s Los Angeles Times has an excellent opinion piece that flags the dangerous trend among U.S. judges to rubber stamp any and all claims of the state secrets privilege by the executive branch. The op ed is written by my writer pal (and UCI boss) Barry Siegel.
And just to help you put Barry’s piece in recent and vivid context, a little memory refresher:
On September 26, 2002, Syrian-born Canadian citizen, Maher Arar, a computer engineer with a smart, pretty wife (who has her own PhD in economics), and two young children, was detained at JFK airport. Arar had stopped in New York on his way back to Ottowa after vacationing in Tunisia. Without allowing Arar real access to a lawyer or anything resembling due process, US officials claimed he had ties to Al Quaeda and, despite the fact he held a Canadian passport, shipped him to Syria as part of the US’s shadowy “rendition” policy. In Syria, Arar was kept in a cell that measured approximately three feet wide, six feet deep and seven feet high—in other words, just about the size of a grave. “The grave,” is how Arar came to think of the place where he would spend the next year of his life, brought out, by his account, only for interrogations, beatings and occasional torture.
Arar was finally released on October 5, 2003, and flew to Montreal the next day, 375 days after U.S. immigration officials arrested him.
When the Canadian Commission of Inquiry issued its report into Arar’s case, Justice Dennis O’Conner stated catagorically that there was no evidence at all that the engineer, father of two, was involved in any kind of terrorist activity. His arrest and subsequent imprisonment, beatings, and torture was an artifact of false and fuzzy info passed to US officials by the Royal Canadian Mounted Police that the Americans never bothered to examine at all before shipping Arar off to Syria.
Arar sued the US government for damages over his detainment and rendition to Syria. In February of 2006, US Judge David Trager ruled that the case couldn’t go forward because the court couldn’t possibly interfere in a case involving crucial national security issues. “The need for much secrecy can hardly be doubted,” wrote the judge.
It’s exactly this kind of blind, “the king can do no wrong” judicial acceptance that Siegel questions.
The retreat of the judiciary has also meant that accused enemy combatants and victims of “extraordinary rendition,” such as Maher Arar and Khaled El-Masri, have not been able to protest their treatment in court. Nor have a variety of penalized whistle-blowers and federal employees making discrimination claims against the government. Nor have contractors embroiled in business conflicts with the military, a scientist defamed by accusations of espionage or a sixth-grade boy investigated by the FBI for corresponding with foreign countries during a school project.
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.
Anyway, read the whole thing. Barry is particularly equipped to do this commentary as he has just this month turned in the final draft of his new book “Claim of Privilege,” about the 1950 case of U.S. v. Reynolds, and the 1953 precedent-setting Supreme Court decision that started it all.
That historic case, writes Siegel, concerned the crash of an Air Force B-29 two years earlier near Waycross, Ga.
A lawyer for the widows of three civilian engineers who died in that crash wanted the Air Force’s accident report, expecting it would shed light on the cause of the disaster. An assistant U.S. attorney balked, arguing that the report could not be released without seriously hampering national security….
The case went up to the Supreme Court and the secret keepers won. Reynolds became the landmark case invoked ever after whenever an administration wanted—for good or for ill—to keep information hidden.
In the nearly half-century between the Reynolds case and 2001, the U.S. government has invoked the privilege in a total of 64 cases.
In the last six years, the Bush administration has invoked it 39 times.
Many of us have come believe that, more often than not, this knee-jerk claim of secrecy has far more to do with maintaining power at all costs, and covering mistakes, incompetence and negligence than it does anything relating to the safety of the citizens of the United States of America.
Oh, and while we’re on the subject of cover-ups, Barry has this note about the original Reynolds case:
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.