an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Many of us have been wondering which of the Bush Administration's disgraceful litigation positions the Obama/Holder DOJ would abandon. Yesterday's Ninth Circuit hearing in Mohamed v. Jeppesen DataPlan was a newsworthy first start. It's up there with the maiden voyage of the Titanic and the flight of the Hindenburg. The excellent Glen Greenwald summarizes the bad news here. In brief, DOJ lawyer Douglas Letter astonished the judges on the panel by defending the outrageous Bush abuse of the "state secrets" privilege in a lawsuit by rendition victims against the CIA's travel service that rendered them. Letter informed the incredulous judges that the new administration had decided to maintain the old administration's position.
The state secrets privilege is the so-called "nuclear option" in litigation, which makes lawsuits against the government vanish without a trace by declaring unilaterally that all the facts the plaintiffs would use to prove their case are state secrets. With no facts to back the claim, plaintiffs' cases must be dismissed.
This one is particularly egregious, because most of the facts are well known and well documented through other sources. One question is whether the state secrets doctrine concerns facts or documents. That is: does it mean that government documents cannot be entered into evidence because they are secret? Or does it mean that the underlying facts are "state secrets" that can never be ventilated in an American courtroom, even if they are well known everywhere else in the world and the plaintiff can prove them using publicly available evidence?
The latter position -- that the state secrets privilege is a rule about facts, not about evidence -- is absurd, but it is the government's position. It's absurd, of course, because there is no point in keeping secrets that aren't secrets any longer. As the ACLU's Ben Wizner who argued against the government yesterday, said of another godawful state secrets case, "really the only place in the world where Khalid El-Masri's case could not be discussed was in a federal courtroom. Everywhere else it could be discussed without harm to the nation, but in a federal court before a federal judge there, all kinds of terrible things could happen."
That's assuming the secret should rightfully be kept in the first place. Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.
The state secrets privilege, used to cover up wrongdoing rather than to protect legitimate national security secrets, is an all-out assault on public accountability and, ultimately, on democracy. By now, it's well-known that the state secrets privilege was born in original sin. The 1953 case in which the Supreme Court established it, United States v. Reynolds, 345 U.S. 1 (1953), turned out, when documents were declassified nearly half a century later, to be a cover-up of gross negligence under a false assertion that the documents contained national security information.
Andrew Sullivan is right to observe here that "with each decision to cover for their predecessors, the Obamaites become retroactively complicit in [their deeds]." Retroactive complicity is an important, and underexamined, moral category. People cover up for others for many reasons, not all of them bad. But the longer and more involved the cover-up becomes, the more deeply implicated you get -- not only in the cover-up, but in the original misdeeds that you're concealing as well. Little by little, you come to own the deeds yourself. Or they own you. It's time to throw away the Ring, Frodo, before it hooks you and enslaves you.