Nat Hentof has a well written but frightening article about the Bush administration's constant invocation of the state secrets privilege to shut down any opportunity for the courts to examine the constitutionality of their actions. Sadly, the courts are so far going along with it. Most recently, a Federal district court in Virginia dismissed a case based on that privilege. As I've said before, the danger here is that it basically destroys the checks and balances built into our constitutional system and denies the right of the people to petition the government for redress of grievances.
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Nat Hentof doesn't add much analysis to this debate. He basically started with the conclusion that state secrets are bad and went from there.
Some state secrets should be kept secret. For example, technical details of America's weapons, including nuclear weapons.
No one seems to be analyzing what a secret is, whether they should be kept secret (and for how long), and whether there is a way to have a trial without disclosing the secrets outside of the court.
David wrote:
But that is indeed the problem with the Bush administration's position. No one thinks that all state secrets should be made public, of course, but by the same token we can't have an executive branch that can arbitrarily decide that anything they choose to call a state secret is one and no one can challenge it in court by virtue of their claim. In fact, there is a way to hold a trial without making that information public, you simply seal the proceedings, as all FISA court proceedings are sealed. But at least there is some check on executive power that way.
When the attendees of a meeting with the Vice President to help determine the nation's energy policy is treated as a state secret thought not officially declared one you've got a problem. When the number of items being declared classified increases as rapidly as it has every year of this administration it's a very good clue that it's even worse.
Jim Satterfield wrote:
Well, the issue of the attendees of the energy policy meetings was actually an invocation of executive privilege, not the state secrets privilege. Legally, quite a different issue. But you're certainly right that this administration, more than any I can recall, is keen on invoking privilege to protect things that clearly should not be protected and that gives very good reason to doubt their invocations of privilege. And frankly, the Plame incident also casts a great deal of doubt on the matter. If classified information was really that much of a secret, why did they deliberately go out of their way to release it to the press in that circumstance? Politics, of course, which is what explains the invocations of privilege in the first place.
What is troubling is the lack of transparency. By rubber stamping "top secret" on almost anything they do, they are effectively preventing public and political oversight over their actions. How do we know that they're not hiding corruption, incompetence, or unconstitutional actions? Transparency is the hallmark of a robust liberal democracy, and since the US fancies itself as the leading light of the free world, we had hoped that they would not resort to shady tactics. Living in a top 10 "most corrupt nation," I know that transparency is usually the first thing to go when politicians start making mistakes, when they're committing "extra-constitutionally," or when they're plundering the national coffers. While I don't think the present US regime has gone that far, their lack of commitment for transparency has my cynical eyes rolling in its sockets.