Several years ago, Nat Hentoff wrote of this undemocratic development
But, as for the courts, increasingly the White House—with the full support of the president's faithful vassal Attorney General Alberto Gonzales—has been compelling judges to dismiss cases that could expose the administration's misrule of law. By invoking the "state secrets" privilege, the administration ensures that all documents and reports central to the case at hand are excluded—and the case cannot proceed.Glenn Greenwald also wrote about the use of "state secrets" as a means of hiding the administration's creation of a parallel "justice" system consisting of illegal torture, spying, and detainment in the shadows.
For one of a growing number of examples of this gagging of the courts: Late at night on May 26, the alleged Justice Department invoked "state secrets" to shut down the Center for Constitutional Rights case CCR v. Bush, challenging the omnivorous and warrantless domestic surveillance by the NSA.
I'll let you know if, in this case, Judge Gerald Lynch of the Southern District of New York goes along with the other judges who have agreed to not even review the evidence before dismissing "state secrets" cases.
The government's weapon of "state secrets" was first unsheathed in a 1953 Supreme Court decision, U.S. v. Reynolds, that gave the administration the authority to prevent the disclosure of any information that would, according to the government, endanger national security.
Since nearly all judges obey, this darkness extends to the press. As Susan Burgess of the Reporters Committee for Freedom of the Press (with which I am affiliated) points out:
"The press is denied a chance to inform the public about the workings of the government, and the public loses its ability to scrutinize the basis for the government's assertion of the 'state secrets' privilege"—let alone "the merits of the parties' claims."
So you have a stake in the expanding use of what has become the Bush administration's favorite means of staying in the shadows of the parallel legal system it keeps on inventing.
As a presidential candidate, Barack Obama denounced the Bush administration's assertion of "state secrets" to hide extralegal behavior. As president, however, his DOJ has stated its intention to continue its use in the same fashion as the Bush administration.
Presented with a first opportunity to break away from the Bush administration’s legacy of abuse and secrecy, and uphold commitments of transparency and openness, the Obama Justice Department stood by the previous administration’s claims of "state secrets" in our lawsuit (Mohamed et al. v. Jeppesen) against Boeing subsidiary Jeppesen DataPlan for its role in the extraordinary rendition program. Before the 9th Circuit Court of Appeals yesterday, once again, we heard government lawyers argue that the entire subject matter is a "state secret" — one that cannot be reviewed by any court. (You can listen to the oral argument here.)It would be nice if we had a press that took an interest in matters relating to civil liberty and Constitutional governance at a fundamental level, but we don't. Which makes it all the more imperative that those who voted for Obama because of his promise to end such practices voice their dismay with this decision. Some Obama partisans will say that they are fine with this development because they trust Obama not to abuse the ability to cloak his administration's actions in secrecy, but this is the exact same reasoning that Bush partisans gave for ok'ing his secrecy.
We do not have a system of government based on the principle that you vote for someone you trust to act in secrecy. Contrary to what George W. Bush thought, elected officials are at all times to be accountable to the people, not merely at elections. The Obama administration has decided to continue one of the most destructive tactics that the Bush administration used to avoid accountabilty for egregious violations of Constitutional process, and has thus made itself complicit in those crimes.
For more on this disgraceful decision, see this post from Glenn Greenwald.
Update: This post from Greenwald is worth taking a look at, as well.