The Big Lie of National Security

Matt Welch | April 19, 2004

On October 6, 1948, an Air Force B-29 crashed in Waycross, Georgia, killing nine people, including three civilian engineers who were working on a classified drone project. The plane had a miserable safety record, and crashed because of engine failures and mismanagement that had absolutely nothing to do with the secret mission, according to the Air Force's internal investigation. This embarrassing information was withheld from the surviving families of the civilians, in the name of National Security, and instead the Air Force just lied and lied about the aircraft's safety and precautions. The families sued the government, which responded by insisting, for the first time, that there's just some National Security information too damned sensitive even to be assessed by judges. The Supreme Court weighed in on this, in the politically charged year of 1953, ruling in United States v. Reynolds that yes, the government has the right to assert a secrecy privilege sometimes, and the rest of us (including the judicial branch) will just have to trust 'em. This despite the fact that there was no legitimate National Security reason for classifying the original accident report.

This little bit of history is recounted in a remarkable, novelistic two-day feature in the Los Angeles Times by legal writer Barry Siegel (part one, part two; give yourself a half-hour and fight through the straight-to-Pulitzer presentation). As Siegel points out,

To this day, U.S. vs. Reynolds represents the Supreme Court's only substantive examination of the state secrets privilege. Law professors consider Reynolds the judicial foundation of national security law. The government invoked the state secrets privilege only five times between 1953 and 1970, then 50 times between 1970 and 1994. The current Bush administration has formally invoked it at least three times. [�]

Over the years, the types of information protected by the state secrets privilege have included: alleged collusion between defense contractors; alleged malfeasance and incompetence by contractors; alleged civil rights violations by the FBI and CIA; the purchase, insurance and inspection records of a government mail truck involved in an accident; and an FBI file on a sixth-grade boy who received a large amount of mail from foreign countries because he was writing an encyclopedia of the world as a school project. [�]

Although these types of claims have multiplied, such direct invocations of the state secrets privilege are by no means the broadest legacy of Reynolds. Far more often, Reynolds is simply cited or referred to in courtroom arguments and legal briefs, producing what George Washington University law professor Peter Raven-Hansen calls an "atmospheric effect." By waving the Reynolds flag in the background, government lawyers have learned they can often gain a degree of judicial deference, especially since the 9/11 terrorist attacks.

Such deference allowed them to confine the "enemy combatants" Yaser Esam Hamdi and Jose Padilla for months without access to lawyers. It encouraged them to keep accused terrorist Zacarias Moussaoui from contacting other accused terrorists. And it permitted them to hold hundreds of detainees without charges or judicial review at the U.S. Navy base at Guantanamo Bay, Cuba.

All enabled by a case that, as Siegel amply demonstrates, was based on blatant government lying and ass-covering in the name of National Security at a time of heightened geopolitical tensions. Something to think about, as President Bush kicks off a barnstorming tour to promote the virtues of the PATRIOT Act.

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|4.19.04 @ 1:26AM|#

Hal,

How is it a bizarre example? The case is cited thousands of court cases that follow. Furthermore, bizarre or not, it illustrates where your deference standard leads - to an executive with artificially inflated powers.

|4.19.04 @ 2:37AM|#

Don't have to read it, I already saw it on the Twilight Zone.

|4.19.04 @ 2:47AM|#

Why should we be shocked that they would lie about alleged matters of national security when they lie about everything else?

|4.19.04 @ 2:53AM|#

Why didn't my lawyers tell me about this when Starr was asking those pesky questions?

I do have to hand it to my successor for coming up with ways to make people disappear. Ken Starr, Richard Melon Scaife, and Newt Gingrich should be thanking their lucky stars that I didn't think of "enemy combatant" status, or I can assure you that Jose Padilla would not be the only one in that brig right now...

|4.19.04 @ 4:17AM|#

While the facts of Reynolds are deplorable, it's still pretty hard to say if the result was right or wrong. The questions it raises are difficult.

Does the state have a right to keep secrets? I'd say unquestionably, though some on this forum may differ.

Who gets to decide which are the secrets? If courts do, suddenly the wrong branch of government may be deciding tricky national security issues.

What mechanism will protect the people from a dishonest government? It's tricky, but ultimately, in a democracy with check and balances, we have to come up with some way that's not too safety conscious or too open with sensitive material. Courts probably have the least expertise and weakest incentives to do this well.

Legal secrecy in government is bad, since politicians will often just wish to hide crimes and embarrassments. But not allowing them to operate in secrecy, and knowing they can keep this secrecy, can also prevent them from doing useful, even necessary work. I can see laws that require a lot of transparency, and ultimate disclosure, but if the courts can simply overturn delicate work if the judge's temperament feels that way, important things can't be done. There must be a proper balance somewhere, but I don't know how to come up with it.

|4.19.04 @ 8:36AM|#

Perhaps it would be a good idea to put political partisanship and axe-grinding aside when it comes to national security. Fat chance! Often incompetent government want to cover their behinds and journalists want a Pulitzer. Nobody trusts the other. Government is political by nature, the media are not.
The media have to shoulder much of the blame, Action News type reporting reigns supreme with the aim to "make a difference". No issue too small to hype into the national crisis of the day. Every time I know something about an issue, I find how much BS is reported.
So now Mr. Siegel wants me to trust him and so does Mr. Woodward. Like, right!

I for one will be much happier when our robed masters, er, the courts, I mean, stop being so deferential toward executive branch prerogatives supposedly set out in the the alleged Constitution. Commander-in-Chief power my butt, I'm talking Sandy-baby power. Marbury rocks!

However, as I've admitted before, I am an attorney. With respect to an omnipotent court system, your mileage may vary. Works for me, though.

|4.19.04 @ 8:41AM|#

This sort of secrecy probably needs to be given a sunset date of, say, a year or so. I look at it this way. When a US soldier is captured, the assumption is not that he will not reveal any information, the assumption is that planners will have the opportunity to alter critical plans. If we give the national security folks time to adjust, they should be able to deal with information requests.

I can see that some bits of info should be classified, and I don't think 100% real time accountability is realistic - but I don't see a problem with 100% eventual accountability. Yes, this means that a current political office holder may not be thrown out in time, but some arrangement for civil and legal penalties can surely be arranged after the fact.

|4.19.04 @ 8:51AM|#

As a follow-up, if you all pardon another post.

"Courts probably have the least expertise and weakest incentives to do this well."

Hal,
courts are best placed to provide much of the checks and balance. They are not political, are the least partisan and quite capable of acquiring at least as much axpertise as a journalist.
That will stay this way only if they are not asked to do the axe-grinding for others.
Ironically, the very groups that most decry government secrecy and dishonesty, have increasingly used the courts when they can't get their way in the political arena. If fewer issues were brought to them, judges wouldn't appear nearly as 'activist'.

|4.19.04 @ 10:18AM|#

Give them an inch ...

|4.19.04 @ 10:20AM|#

Martin,

Let me elucidate.

Courts are best at interpreting law. They are not best at balancing incredibly complex matters of state that the other two much larger branches spend their life doing. They don't teach you that at Harvard, or even Bob Jones.

If courts recognized their place, which is to defer to elected officials except when they are clearly erroneous, they would be more likely to keep their hands off, which is how they're envisioned in the Constiution.

High courts announce huge rules, which means they can make huge mistakes--and the further they stray from their mandate, the huger the mistakes may be. But what do they care with lifetime tenure? Meanwhile, politicians, as much as we may not like what they're doing, are more directly responible for their actions. When they screw up, even when they try to hide what they've done, they have to pay more directly.

|4.19.04 @ 10:29AM|#

Hal,

It should be noted that most of the foreign policy, etc. powers of the President stem directly from court decisions like Curtiss-Wright, not from express grant in the Constitution itself. So if anything, your so-called deference has created a court which is really not deferential, but decides the powers of the other branches.

|4.19.04 @ 11:21AM|#

Jean Bart,

This is a pretty bizarre example you give. The Constitution gives foreign policy powers to both the executive and legislative branches. When there are questions as to which has what particular power, and they can't work it out, it is emphatically the power of courts to help disentangle the problem. This really isn't relevant here.

|4.19.04 @ 11:55AM|#

Hal,

"Courts are best at interpreting law. They are not best at balancing incredibly complex matters of state that the other two much larger branches spend their life doing."

Very valid point indeed. However, U.S. v. Reynolds was predicated by "The families sued the government, which responded by insisting, for the first time, that there's just some National Security information too damned sensitive even to be assessed by judges."
The government cannot hold itself exempt from scrutiny by the courts that they adhere to the laws, simply by invoking national security.
It is precisely the place of the courts to carry out this scrutiny.
Judges could not be independent, if they had to fear paying a price any time their decisions are not liked.
Were it not for an independent judicial branch, we would all be subject to the whims of the politicians, without any recourse at all. That situation is prerequisite and basis of any totalitarian system.

|4.19.04 @ 12:47PM|#

If only Nixon had told the supreme court to stick it. We know, now, via tell-all books, that some of our leading lights of jurisprudence were kids in a candy store playing God. We also know that some, like Douglas and Thurgood Marshall, were protected by coleagues well into senility.

I say 6 years maximum and out. Yes, I know it would take a constitutional ammendment. Do it.

As for G'mt secrets, A bipartisan review at two and five years, then let it all go at ten

Will Spencer|4.21.04 @ 7:30AM|#

Hal:

So, if not the courts, then who do you believe should provide necessary oversight for the executive branch?

|5.16.04 @ 11:18AM|#

Martin,

You have no reason to doubt the words of Mr. Siegel. He has told my story as it happened.

I had no gripe against the government when I was looking for information about my father, and I felt no need to litigate for the negligence that caused that plane to crash. But I DID feel a deep sense anger and indignation when I came to understand that the Air Force had lied in the Supreme Court for its own purposes and that three widows and five little children were consciously cheated out of the compensation they deserved.

We have not asked that the Reynolds decision be overturned. We are simply asking that justice be done in this case. And yes, I DO feel strongly that our democratic system depends on a system of checks and balances and department heads cannot be allowed to simply invoke "national security" on a whim. What's more, this government was born of WE THE PEOPLE and it will live as WE THE PEOPLE direct it. Thats why I decided to speak out. I dont like to see my government making an immoral choice...to me, this is just not the AMERICAN way. Its possible that I wont get satisfaction in the courts...so, thru articles like Mr. Siegel's, I hope to let this be a cautionary tale for all American's to remember.

|5.27.04 @ 4:58AM|#

Heck,

It'd be a LOT easier to keep a secret 'round here if folks'd stop smilin' fer pictures while doing what we're trying to keep secret. Damn Aboo Grab!

That's why I'm now bannin' ALL photography in any government or military facility...'cept the Whitehouse press room...and my Ricky Rocket Pilot Seat on Air Force One...and anything with me and Uncle Dick...

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