05
Oct
10

Bynyam v. Jeppesen dataplan

The 9th circuit court of appeals recently ruled on the first assertion by the Obama administration of the state secret privilege. The case, Bynyam v. Jeppesen data plan, was decided in Obama’s (more accurately, the government’s) favor.

The state secret privilege has its origins in a case at around the half-way mark of the twentieth century named U.S. v. Reynolds in which widows of three men who died during a B-29 superfortress crash. The women sued for the accident reports in an effort to win restitution for their deaths, but the military basically said that such information would compromise national security. (If this was an honest use of this privilege, then you have to wonder, what was that superfortress doing).

Anyway, the state secret privilege is just that, a privilege by which the executive can dodge lawsuits when national security might be at stake. This is a powerful privilege and Bush made use of it many times during his Presidency (well not him personally, but government lawyers). In fact, this case involving Jeppesen data plan is from the Bush years. I’m not sure if Bush used the Reynolds privilege then, but Obama is doing it now. I think its unbelievable the difference in media tone / coverage between Bush’s use of this privilege and Obama’s.

That said, Obama is doing one smart thing. He’s putting the power to use the privilege in AG Holder’s hands and no one else’s. This is a wise government lesson that Obama must have learned in law school, which is rife with cases that encourage (or require) the executive to centralize the use of certain powers so that democratic repercussions can be focused on their misuse. The idea is that if just any member of the executive branch can go around asserting privilege, it may be hard for voters to decide who is really to blame for its overuse (if voters even believe its overused.) When its use is controlled so that Holder is always the one who has to invoke it, the political costs to the administration rises in a focused way. Although still, I’m not sure how well our democracy connects actions of executive agencies to the president himself. Anyway, I think this is a mild step toward a responsible state secrets policy.

The article cited above though talks about the need for congress to get involved and to write in some new restrictions and controls for the use of this privilege. The motivation for this argument is that courts are often very deferential to the executive branch on national security matters and may lack the willpower or democratic legitimacy to stand up to a president who aggressively claims this privilege.

I don’t know what I think about that point, but it seems too simply. First, courts were pretty aggressive I thought in standing up to Bush on issues that seemed to be heavily related to national security including the wiretapping program.

Also, I doubt congress could really do much as a unified body. There are almost no points to score by doing so because the public by definition doesn’t really know if the executive is using the privilege for genuine security concerns or to cover up embarrassing missteps. Also, any rule congress comes up with will be inflexible. If such a bill had any teeth at all, it would prevent the president from using the privilege in some abusive situations BUT ALSO in some needed situations.

The far better fix is not to involve congress (at least legislatively. Investigatively, congress is always kick-ass), but to, as Obama has already done in a tepid kind of way, GET A GOOD PRESS. I cited an example a while back on this blog about how reporting on some government documents got a judge to move the case forward despite the assertion of a state secrets privilege (here’s my original post, very short). The lesson of that example is that a strong press can embolden the judiciary to fight back against illegitimate or sweeping uses of the state secrets privilege.

BUT EVEN BETTER, is the fact that over time, a good press, by discovering leaks and classified documents (which the press is always able to do eventually) can raise the political question of state secrets to enough voters to cause the president to reconsider.

These guys say use congress, and that’s great, but again, I think the best solution to a lot of different democratic problems are more fundamental. You can’t congress involved to fix things if the right people aren’t elected and who have the right incentives due to active and watchful citizens. For many things, you just want some institution to be able to quickly and effectively raise an understanding of how the constitutional order might be under threat. Citizens can draw their own conclusions. But when the press is awful (and I’m VERY dissatisfied by how information is disseminated these days), then we have to go to second best and third best solutions involving the other branches of the government which or may not already be compromised or paralyzed to some degree.

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