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.
Right.
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.
One only has to look at all the mistakes Bush made during this war in Iraq, why would he manage this issue any better. I can name 10 generals off the top of my head who have publicly criticized Bush’s management of the Iraq war. And there are even some republican senators critical of Bush’s handling of the war.
I have also been told I should fear the evil Japanese, Russians, Muslims and etc. and have yet to have any of these people personally cause me any harm. But I have been tossed in the back of a police car and jail for being in the “wrong part of town” by a government employee. My “favorite” expression is “America love it or leave it”, where is this in the constitution? I love my kids, but you can be damn sure I will question plenty of their actions.
As a person who is old enough to have personally been subjected to “the whites only” rules/signs of the past I am not surprised at all by any of this.
See Huffington Post for video clip of Rep. Sen. Nagle talking (on Friday night’s Bill Maher show) about how disgracefully Bush is trying to spin the Iraq war. — Nagle isn’t running for re-election so can come clean about how he really feels.
The other Maher (Arar) case sounds disgraceful: I think there are unfortunately good reasons for racial profiling in some cases, because it’s stupid to make babies and old ladies undergo the same level of search at airports as young men from (or born to parents from) Middle Eastern countries. As we’ve seen last week in Germany, recently in England and Spain, and over and over, the most seemingly “assimiliated” Muslims, or Christian converts to Islam, can be closeted anti-Western fundamentalists. (Far more dangerous than the Christian fundamentalists Chemerowsky is so hysterical about.)
However, and this is a big “however”: simply questioning someone more carefully should be an opportunity to ferret out the true threats, and it is sheer incompetence of the highest order to go so far as to deport someone when there is no basis for this.
Anyone who’s been to Israel knows the way security screens you on departure, asking nosy questions about who you’ve seen or are seeing everywhere on your itinerary, including stopovers in Europe. I used to think this was irrelevant and “we’d never do this in America,” but after 9/11, I think it’s more effective than our one-size-fits all screening, and subjecting everyone to barefoot pat-downs. My former husband was detained off a flight from Egypt to Europe, because he had a Jewish name and we were coming from Israel. (He was let go.) On the other hand, in Muslim countries, or much of India, men and women are sent to different lines for airport security — men would NEVER pat down a woman. Usually, women and children are let through without any patting down, while the men get the third-degree. (When women are patted down, it’s by women behind curtains — much more civilized than what we do, which even insults ME, let along women from traditional societies.) All of these countries are very effective at curbing domestic terrorism.
Locally, when cops stop a Mexican in a crappy car in Beverly Hills for a faulty light, it’s not discrimination when 46% of hit-and-runs on the Westside in general are committed by illegals without a license, so this is a legal way of checking for the right to drive. Similarly, a black guy in a Hummer or black Benz or Lexus slowly cruising around Watts, especially in gold chains, is likely to be…
My overall point being, it’s unfortunate but necessary that some people will be looked at with more suspicion for their national origin, but when that leads to anything more than a cursory pre-screening, like detention without charges and even deportation, then we do have a “justice system” run amok. This is the worst way in which the terrorists have hurt us, by creating a mentality in which if there’s even a chance the person is guilty, better safe than sorry.
maggie Says:
See Huffington Post for video clip of Rep. Sen. Nagle talking (on Friday night’s Bill Maher show) about how disgracefully Bush is trying to spin the Iraq war.  Nagle isn’t running for re-election so can come clean about how he really feels.
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I’m sure Woody is a big fan of Bill Maher and doesn’t miss a single episode. So I provide this link for those who don’t watch the show.
http://www.youtube.com/watch?v=DCZmAa3KZWs
If an illegal alien is driving around Beverly Hills in his crappy car he is picking up his wife who works there. The bus stops along Sunset Ave. on the Westside are used by the housekeepers and babysitters not the residents.
If you see an old truck with a broken tail-light which has rakes and lawnmowers in the bed, guess what they are doing in Beverly Hills or the Westside.
Stealing my garden supplies? Sorry, but that has happened more than once, and I have to keep my heavy-guage hoses locked up now, used to leave them lying next to the street. Although of course the vast majority of workers are honest. The stats re: westside hit-and-runs are from the WLA LAPD.
Celeste: 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….
Hey, let me clue you in that we were attacked by Islamic terrorists in 2001, which demands special ways to defeat them and more need for government secrecy–except for when The NY Times is telling terrorists how we are tracking their financial transactions and such. As the cartoon says, The NY Times cares more about defeating Bush than millions of American lives. It’s a hard decision, but I’ll trust Bush on secrecy more than I do The NY Times on spilling the beans to our enemies.
In a moment of temporary insanity and while looking for amusement, I tuned into Air America today. It was one conspiracy theory after another, one attack against the U.S. after another, one demand to impeach the President after another. Celeste quit listening to that garbage.
Celeste quit listening to that garbage !!!!!!
And don’t listen to anybody else in any government office or news media who criticizes the president he is our God and Savoir!!!!
Captain, there is a huge difference between intelligent dissent and irrational left-wing rantings. Those people on Air America are as nuts as they come. Celeste would be wise to not emulate them.
Logging into this website should be a requirement for anyone knowledgeable on earth these days…