Henry Lanman over at slate is discussing the ramp up of the federal governments use of the state secret privledge. While it’s a fundamentally reasonable privilege, the ways it’s getting used to block investigation of possible illegal behavior is worrying. It doesn’t add confidence to learn that the original case in which the doctrine was confirmed by the Supreme Court turned out to be the Air Force using the tool not to safe guard secrets but to avoid damning proof of negligence.
Despite the burgeoning use of this privilege and the way it’s been used to gut entire cases, the most disturbing aspect of the Bush administration’s expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration’s broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior.
The state secrets privilege was invoked about 55 times from 1954 to 2001, according to the Reporters Committee for Freedom of the Press, and in the first four years after the Sept. 11, 2001, attacks, it was invoked 23 times.
It feels like the system is broken. The judicial branch and the legislative branches are already unable to keep up their end of the check and balances system, and yet there are some that continue to support a more powerful executive branch under the excuse of the war on terrorism?
On the other side of the coin, let’s say that legislative and judicial branches did counterbalance with the result of a weaker State Secret privilege. This may be just as bad because there really are some things that need it. The administration still hasn’t learned the lesson of the boy who cried wolf. When you abuse a powerful tool, you lose that tool.
Whenever the next scandal comes around remember there are three sins bore from it. First is the scandal itself. Second is loss of trust of our leaders and institutions. Third is the damage done to our government in the abuses of power afterwards to stop the story or limit its damage.
By claiming state secret, we have more or less confirmed the Khalid el-Masri extraordinary rendition story. These extraordinary renditions make up sin one. The loss of soft power and public trust in us doing these things is sin two. Finally weakling the State Secret power in trying to use it (ineffectively) to cover up what was done is Sin three.
Which brings back a final note: One of the more sickening aspect of republican’s current spin strategy is that it tries to assign blame of the second sin to the media and then focus on that as if the primary sin didn’t exist and that the owner of the first sin has no responsibility for the second. This is my new concept is my new term for the day; when I hear another “Why is this media printing this!” comment, I will simply remember: The Second Sin