Monday, October 29, 2007

This is the second of two columns on the Bush administration’s abuse of the “state’s secrets” doctrine.

The Bush administration continues to insist that it alone must decide whether a judge is allowed to hear a case that might harm national security. When Judge Harry Pregerson, who serves on the U.S. Court of Appeals for the 9th Circuit, listened to Deputy Solicitor General Gregory Garre telling him that, he responded: “The bottom line here is the government declares something is a state secret, and that’s the end of it. The king can do no wrong,” the Los Angeles Times reported Sept. 16.

I have, however, found clear and feasible ways to end the absoluteness of the government’s use of the “state secrets” bludgeon. A Washington-based independent think tank called the Constitution Project has released a report titled “Reforming The State Secrets Privilege.” This organization’s sole ideology transcending the guerrilla warfare of the political parties is to protect our increasingly battered founding document, which is enfeebled when its separation of powers is disregarded by the presidency.

To illustrate the nonpartisan nature of the Constitution Project, its report on state secrets is by its Liberty and Security Committee in conjunction with the equally independent Coalition to Defend Checks and Balances. The co-authors of the report range from David Keene, chairman of the American Conservative Union and conservative constitutional scholar Richard Epstein (University of Chicago) to liberal civil-libertarian litigator David Cole (Georgetown University Law Center) and the ardent libertarian Constitution defender, John Whitehead, president of The Rutherford Institute. Another is William Sessions, a former FBI director and former chief judge of the U.S. District Court for Texas’s western district.

In its report, the Constitution Project gets to the dangerous core of the government’s claim that it alone can and should decide how to define “state secrets.” The answer from these constitutionalists is: “Unless claims about state secrets evidence are subjected to independent judicial scrutiny, the executive branch is at liberty to violate legal and constitutional rights with impunity. By accepting these claims as valid on their face, courts undermine the principle of judicial independence, the adversary process, fairness in the courtroom, and our constitutional system of checks and balances.” Since this particular administration has violated so many legal and constitutional rights, its assurance that we must “trust” it to close courtrooms requires a suspension of disbelief that responsible American citizens should not provide.

Can we trust an independent judiciary to examine the evidence that the government should provide in support of its claimed “state secrets” privilege? Responds the Constitution Project: Congress has already, in a range of statutes, “recognized major responsibilities of federal judges in the area of national security. Judges now regularly review and evaluate highly classified information.”

Accordingly: “We urge that Congress enact legislation to clarify the narrow scope of this doctrine and safeguard the interests of private parties… In addition, courts should treat this doctrine as a qualified privilege, not an absolute one.” And in the report, even this nonlawyer recognized the name of John Henry Wigmore, for decades the key legal writer on admissible evidence. When government insists that it has sole authority to keep its evidence secret, said Wigmore: “The truth cannot be escaped that a court which abdicates its inherent function of determining the facts on which admissibility of evidence depends, will furnish to bureaucratic officials too ample opportunities for abusing the privilege… Both principle and policy demand that the determination of the privilege shall be for the Court.”

In a case before the 9th Circuit, in which the al-Haramain Islamic Foundation claims it was subject to secret government surveillance without court approval, the government claiming that “state secrets” require, in the interests of national security, that the case must be dismissed without being heard, argued: “Whether plaintiffs were subject to surveillance is a state secret, and information tending to confirm or deny that fact should be privileged.” In George Orwell’s “1984,” Big Brother made certain that everyone in the nation he ruled knew they were under constant surveillance. At least, they were forewarned.

But now, in the United States, the government with vastly improved methods of surveillance enables the citizenry to believe that any of us may, at any time, be under its watchful eye or ear without any prior judicial approval. So we can’t be sure we’ve become a “state secret.” Even the phone companies and Internet providers we use are collaborating with the government to also become our Big Brothers.

This is the land of the free?

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