It's the broken system, stupid

In 1953, the Executive branch grew a little stronger thanks to United States v. Reynolds. In this civil suit, the U.S. government refused to release confidential documents to the plaintiffs, claiming that doing so would endanger national security. The courts agreed to defer to the government's judgment, and the case was dropped.

United States v. Reynolds gave rise to the the State Secrets Privilege, the civil court equivalent of the Classified Information Procedures Act. Basically, this decision granted the U.S. government the right to exclude from court proceedings sensitive information that could endanger national security.

Almost fifty years later, the evidence the government withheld in United States v. Reynolds was declassified and released. As it turns out, this evidence contained nothing confidential; rather, it had embarrassing details that would have sunk the government's case. Clearly, the government's action here was an abuse of power, and given that, it would have made sense to ensure that some checks were placed on the State Secrets Privilege.

Unfortunately, it is much easier to bestow power than it is to take it away. The government managed to ease the fears of the civil libertarians. The abuse of the SSP was blamed on the power-hungry politicians of the past and the government promised that in the right hands, the State Secrets Privilege would make America safer. And the power continued unchecked...

The Bush administration welcomed the SSP, and invoked it a record number of times during its tenure. As we are now beginning to find out, much of the evidence that was hidden from the public eye with the SSP was not confidential at all; it was evidence that would have embarrassed and compromised the Bush administration had it been released. And yet the power continued unchecked...

The fluffy and charming Obama admistration fares no better than the Bush administration in reining in the SSP. In Mohamed v. Jeppesen, the Obama administration took this power a step further and tried to dismiss not only evidence, but the entire case itself (to which the government is not even a direct party) ostensibly due to national security secrets. And the power continues unchecked...

If there's one lesson I've gathered from the State Secrets Privilege debacle, it is that if the system is broken, fix the system.

If the American political system is such that you need a perfect human being to make sure you don't start a war or torture people, then the system is broken. Maybe every 200 years or so, we may be lucky enough to find political leaders benevolent and intelligent enough to largely stamp out corruption and injustice in our country, but why wait 200 years for that? I don't disagree that it is unlikely we will ever find laws and constitutions perfect enough to render even a Pol Pot or Mussolini innocuous, but if we could reduce our dependence on the fleeting sense of virtue in power-hungry politicians, we would be better off. President Obama was the message of hope for many optimistic Americans, but I wonder if we should not be on our guard a bit more.


digitally404 said...

The SSP, if properly executed, sounds like it would make sense to have something like that in place to protect the nation.

But since it seems to be abused, get rid of it. If revealing certain evidence stood to truly compromise national security, why can't they just handle it as a 'special case'? Or would that be setting a precedent?

luc von carrot said...

That's in States but what about Canada? Should we be concerned as well?

annick said...

George Orwell is rolling over in his grave.

You reminded me that the Right (well, not exclusively the Right, as you have pointed out, but in general) has somehow co-opted the phrase "protect the nation," as if lying to citizens and hiding relevant information to voters was anyway to protect anything other than corruption.

This is a great post. I tried to read it last night but failed miserably, but I must have been very tired because you write like a dream.

Eva said...

digital: What do you mean by 'special case'? Precedent is somewhat important in American law, but not quite as much so as in its British counterpart.

luc: Not sure about Canada. I've heard of the Security of Information Act, but I'm not sure if it allows the government to dismiss cases or evidence.

annick: I wouldn't be surprised if the U.S. has a Department of Naming that gives cute euphemisms such as the Patriot Act to anti-civil liberty laws. It's all about the surface meaning.