July 9, 2007

Speak Out Against Abuse of State Secrets Privilege

As the attorney-client privilege unravels, the state secrets privilege tightens and the shining beacon of the republic grows dimmer.

Today we live in an Orwellian America where a three judge panel of the federal 6th Circuit Court of Appeals says, on the one hand, you cannot challenge the government's use of warrantless searches unless you know they have used it in a way that harms you directly. On the other hand, the panel says, you cannot find out if the government has conducted a warrantless search due to the evidence being excluded from the legal process due to state secret privilege.

The 6th Circuit three-member panel has determined, in a vote of 2-to-1, that the American Civil Liberties Union (ACLU) cannot show that it, or its clients, have been harmed by the US Government's use of warrantless infringements on their 4th Amendment rights. The district court judge, Anna Diggs Taylor, found that the US Government had committed a violation of our Constitutional protections from infringements by the federal government. By my count, it's a tie, two federal judges against two federal judges.

At issue is the privilege of private attorney-client communications. If the US Government may intercept attorney-client communications, but doesn't have to reveal whether or not it is doing so, then we must assume that it is doing so in all cases. Not only does this undermine attorney-client confidentiallity, it undermines the legitimacy and stability of the entire democratic experiment. It will, by the natural doctrine of need, legitimize citizen-based counter-espionage directed at the federal government to determine if they are being spied upon. This decision, if it is allowed to stand, risks leading us down a very dark path.

CLICK HERE to Contact the US federal Court Public Affairs Office.
CLICK HERE to Contact the 6th District Court (Send an E-mail to the Library - Ask them to foward it to the Clerk).
Share your concerns. The judicial branch, not the executive branch, makes the decision on whether to grant the state secrets privilege.

If the United States government had an honest history in the use of state secrets privilege, citizens might have reason to give it the benefit of the doubt. Unfortunately, the 1953 legal case that solidified the doctrine of state secrets privilege was a fraud on the American people:

The privilege was first recognized by the U.S. Supreme Court in a 1953 decision, United States v. Reynolds (345 U.S. 1). A military airplane, a B-29 Superfortress bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. [1]

... in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case.

All hope is not lost. The 6th Circuit issue can be appealed to a larger panel of judges in the 6th Circuit (that is why pressure NOW is so important... see link above). In addition, similar cases are before the federal 9th Circuit Court, which is not bound by decisions of the 6th Circuit.


1. Read more about the State Secrets Doctrine.

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