by Peter A. Belmont / 2010-09-09
© 2010 Peter Belmont

RSS Recent Essays (All Topics)   •(12/23) How did we get to October 7th? •(11/23) Our Political Habits Are Ending The Human Race •(10/23) Sketch of Israel-Palestine History •(10/23) Whoever controls the discourse controls emotional reactions to reality •(08/23) Russia On Trial •(01/23) The Purpose of "Conservatism" •(10/22) The project of returning the earth to the cockroaches couldn't be in better hands! •(05/22) Abortion, The Constitution, And The Supreme Court •(03/22) The Problem of Climate Change Framing or Discourse or Understanding •(06/21) Israel-Palestine: If not apartheid, then what? Real democracy depends on the ability of voters to know what their elected and appointed officials are doing “in their name.” Government secrecy (often justified in the name of “national security”) ordinarily acts not to protect Americans from malevolent enemies but, rather, to protect government officials from disclosure of their mistakes, misjudgements, errors, blunders, crimes, corruption, etc.

In a (companion essay), I’ve written about how our American Main Stream Media (MSM) distorts the news Americans receive, in effect virtually requiring every American voter to wear a blindfold into the voting booth.

Here I examine the deleterious effect on American “democracy” of government secrecy.

How much does the USA spend on “defence” (in my opinion, mostly or entirely preparation for and execution of illegal wars of aggression)? How much on clandestine information gathering (on Americans and others)? How much on criminal activities abroad (by CIA, etc.)? On criminal activities at home (if any)? How could you tell? You can’t. Government keeps it all secret.

What do all these groups do? What is their job? How well do they do it? How could you tell? On what factual basis could Americans demand that their government alter its policies and practices regarding war planning and preparations, war fighting, espionage, etc.? We have no such basis, because these matters are largely secret.

Suppose there is a lawsuit (for example a criminal prosecution initiated by the government) as to which the normal legal-procedural rules of discovery, disclosure, cross-examination, etc., would touch on matters the government would like to hide from public? The government lawyers are likely to claim a “state secrecy” privilege (often said to be necessary to protect “national security”) to allow them not to make such things public.

Who cannot see and hear these secrets? Everybody but the government. What the government wishes to hide will not be available, in such litigation, to non-government parties, their lawyers, juries, judges, the media, and the public.

What are the consequences? Does the government lose its case (as any normal litigant would do which refuses to provide evidence)? No. Instead, it claims the right to have the judge and jury ignore whatever it seeks to hide and to believe whatever it wishes to present without proof or without cross-examination.

If someone is suing the government (or anyone else!) and his case depends upon the production of “state secret” evidence, the government can have his case thrown out!


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So government secrecy distorts and defeats justice. But it also distorts and defeats democracy, because the information which normally emanates from lawsuits is part of the information the public needs if it is to know what its government is doing.

Why does the government declare certain information “out of bounds”, “secret”, “classified”?

Well, for two classes of reasons. The thoroughly bad class of reasons is the desire by someone (with power to prevent news getting out) to prevent public knowledge of his or her wrong-doing, inefficiency, mistakes, scandals, corruption, etc.[4] The better (but still bad) class of reasons is to “protect national security”. That is, to prevent “our enemies”—and, of course, to prevent ourselves—from knowing how we spy and how we prepare for (and execute) war-making.

If the USA were actually endangered by any enemies, I’d be more ready to believe that “protection of national security” was a legitimate reason for government secrecy. But that is not the case. The USA may be hated, it may even—very rarely—be attacked at home;—but the USA is not endangered.

”We” (that is, Washington and Wall Street) maintain soldiers all over the world to enforce US diktats, not to prevent enemies from attacking us here at home. US efforts to lord it over others makes us plenty of enemies, but those enemies do not endanger us.

(The attack of 9/11 is portrayed as if the USA had been attacked by enormous numbers of dangerous Islamic terrorists. This is not the strict truth. A few Islamic terrorists did fly aircraft toward the Twin Towers, fully intending to kill themselves and their fellow passengers and people in the Twin Towers. But the far more important terrorists, the people who arranged for the deaths of thousands of Americans in order to gin up anti-Islamic and anti-Afghan war-fever, were those in charge of the American air defences who (in spite of or because of repeated warnings of incipient air attacks on the USA) prevented the normal operation of our American air defences and thus prevented US attack aircraft from deflecting or shooting down the errant aircraft which ultimately crashed into the Twin Towers, killing thousands at the time and later during the cleanup. The MSM fully ignored this aspect of 9/11 and so did the (public) government investigation. Why our defences failed (and even THAT they failed) is a government secret.)

When a CIA agent sought to sue the CIA for racial discrimination, the CIA had the case thrown out on “state secrets” grounds.

A covert CIA agent sued the CIA Director and 10 CIA employees under Title VII claiming racial discrimination by CIA management plus retaliation for using internal EEO procedures. The court dismissed the case under the “state secrets doctrine” based on a declaration by the CIA Director that pursuing the case would result in disclosure of highly classified information about the identity, location, and assignments of CIA operatives.

This appeal squarely raises the question whether the government may invoke a common-law evidentiary privilege in order to extinguish at the outset any possibility of redress not only for these plaintiffs, but for any victims of the government’s unlawful torture policies. Indeed, the sum and substance of the United States’ position in this litigation is that the government may engage in kidnapping and torture, declare those activities “state secrets,” and by virtue of that designation alone avoid any judicial inquiry into conduct that even the government purports to condemn as unlawful in all circumstances. As the panel recognized, the government’s “sweeping” rationale in support of dismissing this action “has no logical limit” and “would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad.”

The Supreme Court has long recognized that in exceptional circumstances courts must act in the interest of the country’s national security to prevent disclosure of state secrets, even to the point of dismissing a case entirely. See Totten v. United States, 92 U.S. 105, 107 (1876). The contemporary state secrets doctrine encompasses two applications of this principle. One completely bars adjudication of claims premised on state secrets (the “Totten bar”); the other is an evidentiary privilege (“the Reynolds privilege”) that excludes privileged evidence from the case and may result in dismissal of the claims.3 See United States v. Reynolds, 345 U.S. 1

It is true that, judicial construct though it is, the state secrets doctrine has become embedded in our controlling decisional law. Government claims of state secrets therefore must be entertained by the judiciary. But the doctrine is so dangerous as a means of hiding governmental misbehavior under the guise of national security, and so violative of common rights to due process, that courts should confine its application to the narrowest circumstances that still protect the government’s essential secrets When, as here, the doctrine is successfully invoked at the threshold of litigation, the claims of secret are necessarily broad and hypothetical. The result is a maximum interference with the due processes of the courts, on the most general claims of state secret privilege. It is far better to require the government to make its claims of state secrets with regard to specific items of evidence or groups of such items as their use is sought in the lawsuit. An official certification that evidence is truly a state secret will be more focused if the head of a department must certify that specific evidence sought in the course of litigation is truly a secret and cannot be revealed without danger to overriding, essential government interests. And when responsive pleading is complete and discovery under way, judgments as to whether secret material is essential to Plaintiffs’ case or Jeppesen’s defense can be made more accurately.

By refusing to examine the voluminous public record materials submitted by Plaintiffs in support of their claims, and by failing to undertake an analysis of Jeppesen’s ability to defend against those claims, the district court forced every judge of the court of appeals to undertake that effort. This was no small undertaking. Materials the government considers top secret had to be moved securely back and forth across the country and made available in a “cone of silence” environment to first the three-judge panel assigned the case and then the twenty-seven active judges of this court to evaluate whether the case merited en banc consideration. This quite literally put the cart before the horse, depriving a reviewing court of a record upon which its traditional review function could be carried out. This is more than a matter of convenience. Making factual determinations is the particular province of trial courts and for sound reason: they are good at it. Not directing the district court to do that work sends exactly the wrong message in the handling of these critical and sensitive cases. Finding remand “unnecessary,” as the majority does here, [Maj. Op. at 13546, n.10], not only rewards district courts for failing to do their job, but ensures that future appeals courts will have to do that job for them. This is an appeal from a Rule 12 dismissal, which means that the district court was required to assume that the well-pleaded allegations of the complaint are true, and that we “construe the complaint in the light most favorable to the plaintiff[s].” Doe v. United States, 419 F.3d 1058, 1062 (9th Cir. 2005). The majority minimizes the importance of these requirements by gratuitously attaching “allegedly” to nearly each sentence describing what Plaintiffs say happened to them, and by quickly dismissing the voluminous publicly available evidence supporting those allegations, including that Jeppesen knew what was going on when it arranged flights described by one of its own officials as “torture flights.” Instead, the majority assumes that even if Plaintiffs’ prima facie case and Jeppesen’s defense did not depend on privileged evidence, dismissal is required “because there is no feasible way to litigate Jeppesen’s alleged liability without creating an unjustifiable risk of divulging state secrets.” [Maj.Op. at 13548]. But Jeppesen has yet to answer or even to otherwise plead, so we have no idea what those defenses or assertions might be. Making assumptions about the contours of future litigation involves mere speculation, and doing so flies straight in the face of long standing principles of Rule 12 law by extending the inquiry to what might be divulged in future litigation.

Abuse of the Nation’s information classification system is not unheard of. Former U.S. Solicitor General Erwin Griswold, who argued the government’s case in the Pentagon Papers matter, later explained in a Washington Post editorial that “[i]t quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification, and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.” Erwin N. Griswold, Secrets Not Worth Keeping: the Courts and Classified Information, Wash. Post, Feb. 15, 1989, at A25. Former Attorney General Herbert Brownell similarly complained in a 1953 letter to President Eisenhower that classification procedures were then “so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrong-doing under the guise of protecting national security.” Letter from Attorney General Herbert Brownell to President Dwight Eisenhower (June 15,1953) (quoted in Kenneth R. Mayer, With the Stroke of a Pen: Executive Orders and Presidential Power 145 (2001)). Even in Reynolds, avoidance of embarrassment—not preservation of state secrets—appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that “this accident occurred to a military plane which had gone aloft to test secret electronic equipment,” and that “there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.” 345 U.S. at 10. In 1996, however, the “secret” accident report involved in that case was declassified. A review of the report revealed, not “details of any secret project the plane was involved in,” but “[i]nstead, . . . a horror story of incompetence, bungling, and tragic error.” Garry Wills, Why the Government Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts should be concerned to prevent a concentration of unchecked power that would permit such abuses.

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