May
01
2009

When the White House Says Hush

Treating the ‘state secrets privilege’ as classified information

Secrets and censorship, a redacted CIA document--Photo Credit: Wikimedia Commons

Secrets and censorship, a redacted CIA document--Photo Credit: Wikimedia Commons

When Barack Obama’s Justice Department announced that it was taking the exact same position as the George W. Bush administration on the state secrets privilege (New York Times, 2/10/09), many civil liberties experts were alarmed. Many avid news consumers, on the other hand, were asking themselves: What’s the state secrets privilege?

Even on the rare occasions when corporate media mention this legal gambit, they don’t always get it right. A USA Today op-ed (7/5/06) described it like this: “The military and state secret privilege requires a court to dismiss a lawsuit just because the president says it involves important secrets.” Well, no, not exactly. The state secrets privilege doesn’t require courts to do anything, but it allows the executive branch to ask courts to exclude evidence—and, lately, to dismiss entire cases—on the grounds that not doing so would jeopardize national security.

The privilege was created in a Supreme Court ruling, United States v. Reynolds, issued in 1953 at the height of McCarthyism and the Cold War. The ruling allowed an accident report sought by widows of civilian victims of a military plane crash to be kept secret, crediting government claims that publishing the report would endanger national security. The report, declassified in 2000, actually contained no secret information—but did reveal negligent maintenance of the aircraft.

The privilege was at first invoked sparingly—only six times in the 24 years from 1953 to 1976, according to analysis by political scientist William Weaver published in the Secrecy Report Card 2008. In the next 24-year period, from 1977-2000, it was used 59 times (2.5 times per year). In the first seven years of the Bush administration, the privilege was invoked 45 times—6.4 invocations per year.

The Bush administration not only asserted the state secrets privilege more often, it significantly widened its scope, getting courts to throw out entire lawsuits on the grounds that the subject of the lawsuit was itself a state secret. This expanded sweep has halted lawsuits involving the warrantless wiretapping program, torture victims Khalid El-Masri and Maher Arar, and FBI whistleblower Sibel Edmonds. Bush’s novel assertion that the government can immunize itself against claims made in the national security realm has met with widespread acceptance in the courts as well as in corporate media.

In fact, media have evinced such an extreme lack of concern about the state secrets privilege that it has never been mentioned on ABC’s World News, according to a search of the Nexis database. Nor has it been discussed on any of the Sunday morning chatshows (Meet the Press, Face the Nation, This Week). Nexis contains two mentions of the privilege apiece on the CBS Evening News and PBS’s NewsHour, and one oblique reference on NBC Nightly News.

As for the most prominent newsweeklies, Newsweek had no mention of the state secrets privilege found on Nexis, while Time (2/23/09) had only a single isolated quote from a Department of Justice spokesperson defending the Obama administration’s embrace of the doctrine, accompanied by a line of context referring to Justice’s “decision to continue George W. Bush’s policy of dismissing lawsuits that could endanger national security.” Given that Time had never mentioned this policy before, readers likely did need some context—though it would have been more helpful if it hadn’t inaccurately suggested that the executive branch has the power to unilaterally dismiss lawsuits.

Leading newspapers could hardly help but do better. Looking for references to the “state secrets privilege,” “claim” or “doctrine,” we found 66 in the New York Times and 48 in the Washington Post; the Wall Street Journal had 10, while USA Today had six, the oldest dating back only to 2006.

But even the Times, which would seem to be the high-water mark of state secrets privilege coverage, did not report on the issue particularly extensively; since its first mention of the privilege in 1993, it has referred to the matter about four times a year. If the Times was right when it editorialized (2/5/09) that the privilege was used to “expand executive power and impose a blanket of secrecy to avoid having to defend indefensible decisions,” didn’t it deserve more coverage than that?

Major news outlets too often identify with the government and its obsession with keeping secrets. As the late Washington Post publisher Katharine Graham once said in a speech to the CIA (Regardie’s, 1/90): “We live in a dirty and dangerous world. There are some things the general public does not need to know and shouldn’t.”

By any realistic appraisal, though, the greatest dangers to U.S. liberty have always come from the U.S. government itself, which is why the First Amendment forbids any restriction on what the press can report. If the media were doing their proper job, they would see a government’s assertion that a case is too secret to talk about as a mandate to dig deeper, not a reason to back away.