Senators Ted Kennedy and Arlen Spector are drafting legislation to finally address the widespread abuse of the military and state secrets privilege, a law that would require courts to seriously review the basis and scope of these assertions. As lead counsel in the Area 51 cases involving the privilege, it is welcomed and long over-due news. The privilege has been claimed in various forms for decades by presidents. However, the Supreme Court articulated the current doctrine after a 1948 Air Force plane crash. The 1953 Supreme Court decision in Reynolds v. US was, and remains, highly controversial. What makes if even more controversial is that facts surfaced recently that show that the Air Force lied to the Supreme Court, a fact that academics have long asserted. The Supreme Court was asked to take up the case again in light of the new information, but refused.
This evidentiary rule created by the Supreme Court allows the government to deny discovery of secrets. In United States v. Reynolds (1953), the Supreme Court stated:
[T]he principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by the officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.
The problem is that the Supreme Court had assumed that courts would perform their critical role in guaranteeing that the privilege would be asserted as a last resort, limiting the scope and use of the privilege.
Sen. Arlen Specter has stated: “I don’t think that the simple assertion of state secrets ought to be the end of the matter.” Amen.
I was counsel in the Kasza and Frost cases out of the Ninth Circuit, which remain leading opinions in the area. While we won this Area 51 litigation and were awarded fees and costs as prevailing parties, we lost the privilege claims on evidentiary matters. The government in the case claimed that even information published on the cover of the New York Times could be claimed as classified. It was truly other worldly. The government was clearly using the privilege to shield evidence of criminal acts by federal officials.
This legislation could not be more important for civil liberties. Let’s just hope that it sees the light of day.
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8 thoughts on “Kennedy and Spector To Offer State Secrets Legislation”
In the case of Area 51 the “secret” to the cause of the illnesses has been declassified, although not easily found.
What more information is needed than to know that thousands of workers were exposed to toxic compounds of “Cesium”.
Executive Order 11157 requires hazardous duty pay to personnel working around toxic jet fuels, none was paid.
In 2007, the CIA released “The History of the OXCART Program” (maybe by accident or for reason yet unknown) that tell of the use of Cesium as an additive in the jet fuel.
The document displays censored text yet the word “cesium” remains. When the CIA’s history published the re-write of the document he purposely omitted any reference to “Cesium”. Demonstrating a willful attempt to hide the “Mistake”.
The only other reference to the use of the Ionizing Toxic Heavy Metal, element #55 was in the book “Skunk Works by Ben Rich, Lockheed ADP Director and co-designer of the aircraft. But, he called it “Panther Piss” on page 240 of the book.
Recently, two more books have been released detailing the use of “Cesium” in the aircraft’s fuel. AREA 51 by Annie Jacobsen and RADAR MAN by Ed Lovick.
Ed Lovick was the physicist who invented the Cesium Additive Cloaking Device.
The aircraft, code named Archangel, A-12, SR-71 Blackbird, used in excess of 20 billion pounds of fuel during their lifespan. Environmental Assessment Reports for the Deactivation of the SR-71 Program at Beale AFB CA, hid the use of this fuel additive. But did remark on the leakage of the fuel into ground in areas of water runoff to creeks that flow to an area called Plumas Lake whereby thousands of new homes have been constructed in recent years. No disclosures were made.
The Center for Disease Control reports the health Effects of cesium are “low due to stable cesium is used only in small quantities in electronic and energy production industries, the risk of significant exposure to stable cesium via inhalation, oral, or dermal routes is expected to be small.”
The newly released information demonstrates that their studies are incorrect and flawed, placing citizens at risk.
Due to the conditions of secrecy during these programs “Compartmentalization” It can be assumed that very few persons knew it existed even at the highest possible levels. Right-to-knows laws were violated and workers would have unknowingly cross contaminated family members with saturated uniforms.
Recent studies over the years have found that cesium readily enters the food chain and will continue to spread throughout the world. Children are more susceptible to these types of carcinogens.
Ok, Senator Kennedy addressed the Senate yesterday on the States Secrets Protection Act he and Senator Spector co-sponsored.
From his speech:
“In recent years, Federal courts have applied the Reynolds precedent to dismiss numerous cases–on issues ranging from torture, to extraordinary rendition, to warrantless wiretapping–without ever
reviewing the evidence. Some courts have even upheld the executive’s
claims of state secrets when the purported secrets were publicly
available, as in the case of El-Masri v. Tenet. In that case, there was extensive evidence in the public record that the plaintiff was
kidnapped and tortured by the CIA on the basis of mistaken identity,
but the court simply accepted at face value the Government’s claim that litigation would require disclosure of state secrets. The court
dismissed Mr. El-Masri’s case without even evaluating the evidence or considering whether the case could be litigated on other evidence.
When Federal courts accept the executive branch’s state secrets
claims as absolute, our system of checks and balances breaks down. By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, courts give the executive branch the ability to violate American laws and
constitutional rights without any accountability or oversight, and
innocent victims are left unable to obtain justice. The kind of abuse that occurred in Reynolds will no longer be possible under the State Secrets Protection Act.”
I wish someone here more knowledgeable could analyze this legislation. On a cursary reading, I don’t think it is going to make much of a diffence in the way it actually plays out….
Whatever happened to this legislation?
Now that J Freiman and his NLP cohorts have launched a suit on behalf of Padilla against Yoo, that legislation would come in very handy.
This might be worth watching even though Padilla himself is not the optimal vessel.
I have listened to your comments on Olbermann and Randy Rhodes and you are truly a breath of fresh air. I look forward to your comments whenever you are on and am pleasantly surprised that you offer clear and reasoned arguments on legal and political issues, only because so few legal experts who appear as guests on TV shows choose to avoid the proverbial sound bite. please expand your appearances, I and i’m sure many others would like to hear more of your comments.
Just taking the long view, one would think that our collective memories would extend past the current average of 3.5 weeks. Why didn’t the Democrats at the time of the MCA, the Patriot Acts I and II, the recent Kyle resolution, remember what the Republicans learned back in the halcyon days of 1954—-namely it is of no use to compromise one’s ideals for fear of being branded “soft” on whatever the current witchhunt is.
One would have hoped that an institutional memory of our long and doleful history of various national episodes of demagogery and fear-mongering would have innoculated us against the current virulence.
Perhaps the Dems underestimated the electorate’s tolerance for moral courage.
Or perhaps they correctly assessed that the electorate cannot recall and doesn’t care for anything more than the immediate.
A nation of amnesiacs ruled by shifting cabals of opportunists.
“Quantum in rebus inane!”
Probably so, but the first hurtle is to get the dems to assume a united front on the matter.
Without a doubt Mukasey’s office will advise the President to veto the bill….
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