The Mother of All Slippery Slopes Defended by "Steep Cliff-Face"

Matt Welch | September 27, 2005

Speaking of United States v. Reynolds, a fraud challenge to the settlement related to the 1953 Supreme Court decision, filed by the daughter of the man whose death was covered up, lied about, and used as the legal basis for Executive Branch secrecy, was rejected by the 3rd Circuit on Sept. 22.

Writing for a unanimous three-judge panel, Senior 3rd Circuit Judge Ruggero J. Aldisert found that "the concept of fraud upon the court challenges the very principle upon which our judicial system is based: the finality of a judgment."

As a result, Aldisert concluded that "the presumption against the reopening of a case that has gone through the appellate process all the way to the United States Supreme Court and reached final judgment must be not just a high hurdle to climb but a steep cliff-face to scale."

Despite evidence to the contrary, Aldisert judged that the Air Force's original affidavits can indeed "be reasonably read to assert privilege over technical information about the B-29." Whole story here; ruling [PDF] here, Secrecy News' take here.

For those with iron stomachs, I encourage you to read the text of United States v. Reynolds; here's one particularly familiar-sounding section:

Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.

In the instant case we cannot escape judicial notice that this is a time of vigorous preparation for national defense.

Nope, we certainly "cannot escape."

Comments

|9.27.05 @ 4:15PM|#

Over/under on the first jackass who yells "judicial activism"?

Dave W.|9.27.05 @ 4:15PM|#

I still don't see what the problem with in-chambers review is, but you're right, Matt, I don't have the stomach to see whether the Reynolds Court explains it in the full op.

|9.27.05 @ 4:53PM|#

Dave W.,

Most federal judges are very reluctant to (despite demands from the Congress to do otherwise) overturn or find fault with a decision of the national security state. Honestly, in a country with something like the Glomar principle, do you think that the federal courts are going to quibble over something like this where they can hide behind res judicata.

The Anti-Puritan|9.27.05 @ 6:00PM|#

Writing for a unanimous three-judge panel, Senior 3rd Circuit Judge Ruggero J. Aldisert found that "the concept of fraud upon the court challenges the very principle upon which our judicial system is based: the finality of a judgment."

Rule #1: The government is always right.

Rule #2: If the government is wrong, see Rule #1.

|9.27.05 @ 6:52PM|#

"When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers."

I'm no legal scholar...

...but I once ref'd a football game, and it seems to me that you've gotta see the play if you're gonna make the call.

|9.28.05 @ 8:46AM|#

"Aldisert judged that the Air Force's original affidavits can indeed "be reasonably read to assert privilege over technical information about the B-29.""

This makes me so mad that I actually hit the table. It's one thing to have no spine and accept allegations of national security interest on their face. That merely makes you a spineless statist.

It's another thing entirely to write a bald-faced lie like the above Whopper from Aldisert. No, Judge, it can't reasonably read that way any more. The facts are out. We know why they did it, and it had nothing to do with protecting information about the B-29. I don't know how you look at yourself in the mirror in the morning.

Although, it doesn't surprise me that much as I have heard another 3rd Circuit Judge proclaim that he is "part of the team cleaning up the streets" in conjunction with the local U.S. Attorney.

3 separate branches of government? Ha! More like 1 and 1/4.