State Secrets

Anti-torture advocates are up in arms over the Obama administration's refusal to back off from a Bush-era assertion of State Secrets privilege.

Sullivan counsels caution: http://andrewsullivan.theatlantic.com/the_daily_dish/2009/02/obama-bush-and.html

Greenwald is harshly critical: http://www.salon.com/opinion/greenwald/2009/02/10/obama/index.html


I'm willing to give the few-week-old Obama team to figure out its stance on the various cesspools left to them by the Bush administration. But I think it's useful to make a stink about it and not give Obama a pass.

The State Secrets privilege is problematic. It was born in a lie and seems to have protected far more crimes and embarrassments in its tenure than genuine secrets (which don't seem to need court protection very often).

Wikipedia has a good summary of the facts:

The privilege was first officially recognized by the U.S. Supreme Court in a 1953 decision, United States v. Reynolds (345 U.S. 1). A military airplane, a B-29 Superfortress bomber, crashed. The widows of three civilian crew members sought accident reports on the crash but were told that to release such details would threaten national security by revealing the bomber's top-secret mission. The court held that only the government can claim or waive the privilege, and it “is not to be lightly invoked”, and last 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 that officer.” The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive.
As a footnote to the founding case establishing the privilege, in 2000, the accident reports were declassified and released, and it was found that the argument was fraudulent, and there was no secret information. The reports did, however, contain information about the poor state of condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many commentators have alleged government misuse of secrecy in the landmark case.
Despite this ruling, a case might still be subject to judicial review since the privilege was intended to prevent certain, but not all, information to be precluded.