US v Reynolds
The LATimes reports on the story behind the seminal case that gives the government absolute privilege to withhold information from litigants or defendants by invoking national security. The case puts judges in the position of having to rule blindly -- they can't rule on the facts of a case because the government says "the facts" are classified.
What was meant as a shield to protect national security, plaintiffs' lawyers started complaining, now was being used as a sword to kill litigation. At the least, one law professor observed, the interests of the administration in power sometimes seemed to get confused with the interests of the nation.
The use of Reynolds started slowly but grew: The government invoked the state secrets privilege only five times between 1953 and 1970, then 50 times between 1970 and 1994. The current Bush administration has formally invoked it at least three times.
The scope of what constitutes a state secret has also expanded, from military technology to all sorts of domestic intelligence operations. Even unclassified information has become subject to national security claims. Government lawyers argue that judges can't see the whole picture, can't tell when separate pieces of seemingly innocuous information might be gathered into a revealing "mosaic."
Over the years, the types of information protected by the state secrets privilege have included: alleged collusion between defense contractors; alleged malfeasance and incompetence by contractors; alleged civil rights violations by the FBI and CIA; the purchase, insurance and inspection records of a government mail truck involved in an accident; and an FBI file on a sixth-grade boy who received a large amount of mail from foreign countries because he was writing an encyclopedia of the world as a school project.
In 1975, a group of Vietnam War protesters claimed the FBI and CIA conducted intelligence operations against them, but they had to drop the lawsuit after a district court upheld the government's state secrets claim. In 1990, families of 37 crew members killed when Iraqi missiles struck the frigate Stark sued contractors responsible for the ship's antimissile system, but the United States again successfully invoked the state secrets privilege. In 2000, a similar claim of privilege stopped a gender discrimination lawsuit filed by a CIA employee. In early 2003, yet another claim killed a suit filed by a senior engineer who'd maintained that a defense contractor had submitted false test results on an antimissile vehicle.
Although these types of claims have multiplied, such direct invocations of the state secrets privilege are by no means the broadest legacy of Reynolds. Far more often, Reynolds is simply cited or referred to in courtroom arguments and legal briefs, producing what George Washington University law professor Peter Raven-Hansen calls an "atmospheric effect." By waving the Reynolds flag in the background, government lawyers have learned they can often gain a degree of judicial deference, especially since the 9/11 terrorist attacks.
Such deference allowed them to confine the "enemy combatants" Yaser Esam Hamdi and Jose Padilla for months without access to lawyers. It encouraged them to keep accused terrorist Zacarias Moussaoui from contacting other accused terrorists. And it permitted them to hold hundreds of detainees without charges or judicial review at the U.S. Navy base at Guantanamo Bay, Cuba.
The Bush administration invokes it so often, it's become a rote response. Most insanely, Ashcroft has used "Reynolds" to classify whistleblowers' testimony regarding FBI failures prior to 9-11.
In fact, in the original case, there was nothing secret to hide, only negligence on the part of the Air Force.
It took years, but the daughter of one of the victims of the 1953 B-29 crash that led to "Reynolds" finally got a hand on the accident report that the government had told the Supreme Court was secret fifty years ago. Last year, she and others who'd lost fathers in the crash appealed the case to today's Court, armed with the fact that the government had lied to their predecessors. In a one word statement, the Court denied their petition.
What was meant as a shield to protect national security, plaintiffs' lawyers started complaining, now was being used as a sword to kill litigation. At the least, one law professor observed, the interests of the administration in power sometimes seemed to get confused with the interests of the nation.
The use of Reynolds started slowly but grew: The government invoked the state secrets privilege only five times between 1953 and 1970, then 50 times between 1970 and 1994. The current Bush administration has formally invoked it at least three times.
The scope of what constitutes a state secret has also expanded, from military technology to all sorts of domestic intelligence operations. Even unclassified information has become subject to national security claims. Government lawyers argue that judges can't see the whole picture, can't tell when separate pieces of seemingly innocuous information might be gathered into a revealing "mosaic."
Over the years, the types of information protected by the state secrets privilege have included: alleged collusion between defense contractors; alleged malfeasance and incompetence by contractors; alleged civil rights violations by the FBI and CIA; the purchase, insurance and inspection records of a government mail truck involved in an accident; and an FBI file on a sixth-grade boy who received a large amount of mail from foreign countries because he was writing an encyclopedia of the world as a school project.
In 1975, a group of Vietnam War protesters claimed the FBI and CIA conducted intelligence operations against them, but they had to drop the lawsuit after a district court upheld the government's state secrets claim. In 1990, families of 37 crew members killed when Iraqi missiles struck the frigate Stark sued contractors responsible for the ship's antimissile system, but the United States again successfully invoked the state secrets privilege. In 2000, a similar claim of privilege stopped a gender discrimination lawsuit filed by a CIA employee. In early 2003, yet another claim killed a suit filed by a senior engineer who'd maintained that a defense contractor had submitted false test results on an antimissile vehicle.
Although these types of claims have multiplied, such direct invocations of the state secrets privilege are by no means the broadest legacy of Reynolds. Far more often, Reynolds is simply cited or referred to in courtroom arguments and legal briefs, producing what George Washington University law professor Peter Raven-Hansen calls an "atmospheric effect." By waving the Reynolds flag in the background, government lawyers have learned they can often gain a degree of judicial deference, especially since the 9/11 terrorist attacks.
Such deference allowed them to confine the "enemy combatants" Yaser Esam Hamdi and Jose Padilla for months without access to lawyers. It encouraged them to keep accused terrorist Zacarias Moussaoui from contacting other accused terrorists. And it permitted them to hold hundreds of detainees without charges or judicial review at the U.S. Navy base at Guantanamo Bay, Cuba.
The Bush administration invokes it so often, it's become a rote response. Most insanely, Ashcroft has used "Reynolds" to classify whistleblowers' testimony regarding FBI failures prior to 9-11.
In fact, in the original case, there was nothing secret to hide, only negligence on the part of the Air Force.
It took years, but the daughter of one of the victims of the 1953 B-29 crash that led to "Reynolds" finally got a hand on the accident report that the government had told the Supreme Court was secret fifty years ago. Last year, she and others who'd lost fathers in the crash appealed the case to today's Court, armed with the fact that the government had lied to their predecessors. In a one word statement, the Court denied their petition.
posted by John at 5:45 PM
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