November 26, 2007

Is the State Secrets Privilege Legitimate?

With the state secrets privilege making headlines, its worth looking back at where it came from.

Associated Press reporter, Pamela Hess, writes:
The principle was established a half-century ago when, ruling in a wrongful-death case brought by the widows of civilians killed in a military plane crash, the Supreme Court upheld the Air Force's refusal to provide an accident report to the plaintiffs. The government contended releasing the document would compromise information about a secret mission and intelligence equipment.

But she ends it there. Further investigation reveals that the deaths might have been wrongful, which was the only secret being hidden by the State. According to

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.

The state secrets doctrine becomes illegitimate when we loose trust in the Government (i.e., the executive branch). We have good cause to lack trust in the Government. Another example from the AP article follows:

a federal judge in Virginia last week ordered the government to give trial prosecutors, defense lawyers and her clerk security clearances to review classified material in a terrorism case. Defense lawyers say the material will show the government failed to turn over evidence obtained by illegally monitoring their client's communications, and they want a new trial. The government says the information is protected by the state secrets privilege.

In that example, we see evidence that attorney-client privilege is unraveling, while the state secrets privilege is tightening.

It's called the State Secrets "Privilege;" it's not a right, and the current government has lost it's privilege. We need to use the checks and balances, which partly define our democracy, and require judicial review of all specific Government claims of this privilege.


Associated Press, Challenges brew over 'state secrets', Pamela Hess, November 26, 2007.

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