STATE SECRETS….As we all know (or should know by now), the “state secrets privilege” in U.S. courts is basically absolute. If the government tells a judge that divulging a certain piece of evidence might endanger national security, then the evidence is excluded. If that means the case itself can’t go forward, tough. According to Barry Siegel in the LA Times today, the Bush administration has invoked the state secrets privilege 39 times, nearly triple the rate of the four previous administrations. It’s the neutron bomb of wartime executive power.

But if it’s being abused, why doesn’t Congress get a spine and modify it? Funny you should ask. You see, the state secrets privilege wasn’t created by Congress. It was created by the Supreme Court half a century ago when the government tried to get a suit over a B-29 accident thrown out on the grounds that it would endanger national security to let it go forward:

[District Judge William] Kirkpatrick found the government in default and awarded the widows damages. A three-judge panel of the U.S. 3rd Circuit Court of Appeals unanimously affirmed his decision.

But when the matter came before the U.S. Supreme Court, it reversed the lower courts, for the first time formally recognizing a state secrets privilege in the landmark ruling U.S. vs. Reynolds. The government shouldn’t have absolute autonomy, wrote Chief Justice Fred Vinson in his 1953 opinion, but if the government can satisfy the court that a “reasonable danger” to national security exists, judges should defer and not force the government to produce documents — not even for private examination in the judge’s chambers.

Ironically, we now know that there were no national security implications at all in the original Reynolds case. Turns out it was garden variety negligence and incompetence that caused the plane to crash — something the lower court judges would have known if they had been allowed to review the accident report privately. But not only did the Supreme Court decline to allow an in camera review, it set a precedent specifically instructing trial courts that if there’s a “reasonable danger” that national security is at stake, “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 other words, if the government says so, then the case gets thrown out. To this day, courts are extremely reluctant to demand even a private review of executive branch secrecy claims, let alone issue an affirmative ruling against the government:

Yet the Bush administration may finally have escalated the dubious use of the state secrets privilege to a point of resistance. In the summer of 2006, U.S. District Judge Vaughn R. Walker…ventured to deny government state secrets claims in the domestic surveillance and eavesdropping cases.

….[Walker’s opinion] came on appeal before the three-judge U.S. 9th Circuit panel last month….But judicial deference, for once, did not seem to be in the air. According to news reports, Pregerson (a President Carter appointee) sounded downright irritated; judges McKeown and Michael Daly Hawkins (President Clinton appointees) at the least were doubtful.

….Hearing the deputy solicitor general talk of “ultimate deference” due the executive branch, Pregerson asked: “What does ‘ultimate deference’ mean? Bow to it?”

Question: if the 9th Circuit rules against the government and the Supreme Court takes up the case, where will conservatives side? Against the 1953 decision in which the Supreme Court invented an expansive new claim of privilege where none had existed before, surely a clear-cut case of the judicial activism they so often condemn? Or with the government because….because….they really like expansive executive branch powers? Stay tuned.

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