Wednesday, February 12, 2014

Abuse of the State Secrets Privilege

Wired Magazine reports:
After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error.

FBI agent Kevin Kelley was investigating Muslims in the San Francisco Bay Area in 2004 when he checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list.

What happened next was the real shame. Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.

Holder went so far as to tell the judge presiding over the case that this assertion of the state secrets privilege was fully in keeping with Obama’s much-ballyhooed 2009 executive branch reforms of the privilege, which stated the administration would invoke state secrets sparingly.
You would think this is the exception, but the very purpose of the "state secrets" privilege, from its very inception, was to cover up government negligence.  From Glenn Greenwald's blog:
The judicially created "State Secrets Privilege" was first recognized by the Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953), a suit brought under the Tort Claims Act by the widows of 3 civilians who died when an Air Force plane crashed. The widows sought to obtain military reports regarding the crash in order to prove that the Air Force was negligent, but the Supreme Court upheld the Government's refusal to produce the documents on the ground that doing so would divulge military secrets and harm national security....

As it turns out, those Air Force reports were finally released 47 years later -- in 2000 -- and they contained no military secrets at all, but were suffuse with information showing that there had been gross negligence with regard to the maintenance of the plane's engines, facts which would have likely been fatal to the Air Force's defense had it not been able to successfully conceal those documents by falsely claiming that national security would be harmed by disclosure....
 Another notable case where the privilege was invoked was a lawsuit by workers at the infamous "Area 51" near Groom Lake, Nevada, who had sued for illnesses due to exposure to toxic waste. The September 19, 1995, Christian Science Monitor noted:

The suits allege that the US military used the secrecy cloaking Dreamland's top-flight weaponry to commit and cover up environmental crimes. Four former workers, along with the widows of two others, allege the Air Force burned toxic waste at the site in violation of the 1976 Resource Conservation and Recovery Act (RCRA), Congress's first major toxic-waste management bill. ''The military and its contractors would dig large open pits, then fill the trenches with 55-gallon drums, which were full of paints, solvents, and other chemicals,'' says Jonathan Turley, a law professor at George Washington University in Washington, D.C., who represents the workers. ''The drums would then be covered with jet fuel and lighted with a flare or torch.'' The workers have sued the Department of Defense, the National Security Agency, and the Air Force for allowing the burning to continue. (The suits allege that the burning has taken place, on and off, for the past 10 years.) They have also sued the Environmental Protection Agency (EPA) for failing to inspect and monitor waste disposal at the facility, as required by RCRA. According to the lawsuits, fumes from burning chemicals caused a variety of skin disorders among the workers. Helen Frost's husband was exposed to the chemicals and later died. ''When they go to work up there, they take a nondisclosure oath so they could not talk about work,'' Mrs. Frost says. ''And if they did, they were threatened with Leavenworth [federal prison]. So the first problem was that when we went to the doctor, we couldn't tell him where he, my husband, worked or what what he might have been exposed to.'' Stuck in pretrial dispute But whether or not Mr. Frost, or other workers, became ill as a result of the alleged burning is a question the court is still far from answering. For the last seven months, the litigation has been stuck in a bitter pretrial dispute over whether the trial should be dismissed because information brought out in court might jeopardize national security. To this end, the Air Force has invoked the military and state secrets privilege, a rarely used tenet of common law that allows the executive branch to withhold information if disclosure might jeopardize American soldiers or diplomatic relations. In this case, the Air Force has refused to release even the most basic information about the base: its name, and whether or not jet fuel or car batteries were used at the base, for example. The agency has also asked Federal Judge Phillip Pro to throw both cases out of court. In short, Air Force lawyers argue that because national security precludes the military from divulging any more details, the plaintiffs will not have enough evidence to go to trial. To back this claim, Air Force Secretary Sheila Widnall has submitted two affidavits to the court - one public and one for the judge's eyes only - claiming that any environmental review of the facility entered into the record could educate foreign powers about US military technology.
 The privilege was rooted in a fraud, and is used to perpetuate fraud. It should be abolished.

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