CT Blue

This is a story about what happens when one branch of our government relinquishes its proper role in the name of national security.

In 1948 an Air Force plane crashed. A number of people were killed, including some civilian employees of RCA. Their family members sued the Air Force for negligence, and asked for a copy of the Air Force’s investigation into the incident. The Air Force didn’t want to provide it. The trial judge ordered the Air Force to provide the report for in camera inspection. (“in camera” means that the judge reviews the document and decides whether it should be released.) The Air Force refused, and the trial judge entered a default against it. The Circuit Court upheld the trial judge. The Supreme Court, however, reversed, crafting a “state secrets” privilege out of thin air. Essentially, the court ruled that the government could declare something a “state secret” and that put an end to the matter. No review, ever, of any claim that a piece of evidence is a “state secret”, or, for that matter, of a government claim that a whole lawsuit must be dismissed because the government merely claims that its further prosecution would compromise state secrets.

I remember reading the case when I was in law school. It seemed patently obvious that the whole thing was a lie, and that the government was just engaged in a coverup. Turns out that was true. In the latest New York Review of Books, Garry Wills reviews two books about the incident. (Unfortunately, the NYRB does not post the full text of all of its articles, even the week of publication. This is among those you cannot read in full) It turns out that the report was declassified during the Clinton Administration, and much to nobody’s surprise, there wasn’t anything in it that constituted any kind of secret, unless massive incompetence on the part of the Air Force can be considered the sort of secret that needs protecting. I daresay that a review of the other cases in which it has been used would lead the impartial observer to conclude that real state secrets were threatened in very few.

It’s pretty obvious that if one litigant gets to withhold evidence, that litigant will have an incentive to do so, particularly when it wants to avoid embarrassment. If that litigant is, for all practical purposes, the judge of its own cause, it is likely to rule for itself. And if that litigant is running a criminal enterprise, like, say, the Bush Administration, then it will avail itself of its get out of lawsuit free card at every opportunity.

Separation of powers is at the very core of our system. The founders realized that unchecked power was absolute power, and as the saying goes, absolute power corrupts absolutely. And so it has been with the states secret privilege. Wills sums it up nicely in the title of his review: Why the Government Can Legally Lie.

Perhaps we owe Bush and his cronies a debt of thanks. Other Administrations have used this device to cover up their crimes or peccadillos, but Bush outdid them all, and now at least one judge has pushed back. Whether the higher courts will back him up is an open question and Obama has sent mixed signals at best on issues like this. But the history of this court created grant of absolute power to the executive has been a dismal one, demonstrating in spades that the Founders were right about unchecked power.