Law Specialist Louis Fisher sets the Bush White House straight on who really has ‘inherent’ powers in a democracy. Top Legal Scholar Refutes Bush Claims of Sweeping PowersBy Cliff Montgomery – Feb. 19th, 2008The following quotes are from a Jan. 29th statement on the so-called “state secrets privilege”, as given by Constitutional Law Specialist Louis Fisher to the House Subcommittee on the Constitution, Civil Rights and Civil Liberties:“My statement explains how the [‘state secrets’] privilege has emerged as such a central issue…”There have been many state secrets cases over the years.”The stakes today, however, are much higher. Following the terrorist attacks of 9/11, assertions of the privilege pose a greater threat to constitutional government and individual liberties in such cases as NSA surveillance and extraordinary rendition.”The [Bush] administration invokes the state secrets privilege to block efforts in court by private litigants who claim that executive actions violate statutes, treaties, and the Constitution. The executive branch argues that the President possesses certain ‘inherent’ powers in times of emergency that override and countervail limits set by statutes, treaties, and constitutional provisions.”Even if it appears that the administration has acted illegally, the executive branch advises federal judges that a case cannot allow access to documents without jeopardizing national security. […]”[But] unless federal judges look at disputed documents, we do not know if national security interests are actually at stake or whether the administration seeks to conceal not only embarrassments, but violations of law.Concealing Executive Mistakes“Administrations have invoked the claim of state secrets to hide misrepresentations and falsehoods.”In the Japanese-American cases of 1943 and 1944, the Roosevelt administration told federal courts that Japanese-Americans were attempting to signal offshore to Japanese vessels in the Pacific, providing information to support military attacks along the coast. […] Scholarship and archival discoveries in later years uncovered this fraud on the court, and led to coram nobis (fraud against the court) cases that reversed the conviction of Fred Korematsu. […]”During the October 18, 2007 hearing before the House Foreign Affairs and Judiciary subcommittees, Kent Roach of the University of Toronto law school reflected on similar problems in Canada of executive misuse of secrecy claims.”[Roach] served on the advisory committee that investigated the treatment by the United States of Maher Arar, who was sent to Syria for interrogation and torture.””The Royal Canadian Mounted Police (RCMP) described Arar and his wife as ‘Islamic Extremist individuals suspected of being linked to the Al Qaeda terrorist movement.’ [But] the Canadian commission concluded that the RCMP ‘had no basis for this description.’ “”Mr. Roach said the experience of the Canadian commission ‘suggests that governments may be tempted to make overbroad claims of secrecy to protect themselves from embarrassment and to hinder accountability processes.’ […]The Reynolds Case“The pattern of misrepresentations by executive officials described above applies to the Supreme Court decision that first recognized the state secrets privilege, United States v. Reynolds (1953).”On October 6, 1948, a B-29 plane exploded over Waycross, Georgia, killing five of eight crewmen and four of the five civilian engineers who were assisting with secret equipment on board.”Three widows of the civilian engineers sued the government under the recently enacted Federal Tort Claims Act of 1946. Under that statute, Congress established the policy that when individuals bring lawsuits the federal government is to be treated like any private party. […]”The wives asked for the statements of the three surviving crewmen and the official accident report.”District Judge William H. Kirkpatrick of the Eastern District of Pennsylvania…ruled in favor of the widows.”The Third Circuit upheld his decision. […] In addition to deciding questions of law, the Third Circuit considered the case from the standpoint of public policy. To grant the government the ‘sweeping privilege’ it claimed would be contrary to ‘a sound public policy.'”It would be a small step, said the court, ‘to assert a privilege against any disclosure of records merely because they might be embarrassing to government officers.’ […]”The Third Circuit [also] dismissed the argument that judges could not be trusted to review sensitive or classified materials:
- ‘The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of executive departments.’
“Judges [thus] may be depended upon to protect against disclosure those matters that would do damage to the public interest.”If, as the government argued, ‘a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege, those facts also may be presented to the judge in camera.’ […]”In Reynolds [before the Supreme Court], the government argued that it had exclusive control over what documents to release to the courts. Its brief stated that courts ‘lack power to compel disclosure by means of a direct demand on the department head…’ […]”On March 9, 1953, Chief Justice Vinson for a 6 to 3 majority ruled that the government had presented a valid claim of privilege. He reached that judgment without ever looking at the accident report or the survivor statements.”Like what you’re reading so far? Then why not order a full year (52 issues) of thee-newsletter for only $15? A major article covering an story not being told in the Corporate Press will be delivered to your email every Monday morning for a full year, for less than 30 cents an issue. Order Now!
