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.