State Secrets Privilege Misused From the Start

The New York Times had a story this weekend on the invocation of the State Secrets Privilege, something Wired News covered a month ago, but the Times piece is still worth reading.

Cribbing from my earlier story, in short, the state secrets privilege "allows the government to tell a judge that a civil case may expose information detrimental to national security, and to ask that testimony or documents be hidden or a lawsuit dismissed. That extraordinary executive power was established in English common law and upheld in a 1953 Supreme Court case involving the fatal crash of a secret bomber."

What the Times revealed is that the government may have lied to the Supreme Court in 1953 about the need to keep the evidence secret from the families suing to learn what happened to their loved ones.

[D]ocuments from the 1953 case that defined the modern privilege, United States v. Reynolds, have been declassified in recent years and suggest that Air Force officials misled the court.

An accident report on a B-29 bomber crash in 1948 was withheld because the Air Force said it included technical details about sensitive intelligence equipment and missions, but it turned out to contain no such information, said Wilson M. Brown III, a lawyer in Philadelphia who represented survivors of those who died in the crash in recent litigation.

"The facts the Supreme Court was relying on in Reynolds were false," Mr. Brown said in an interview. "It shows that if the government is not truthful, plaintiffs will lose and there's very little chance to straighten it out."

That revelation adds credence to what William Weaver, a law professor and senior adviser to the National Security Whistleblowers Coalition, told me he thought was going on in the government's invocation of the privilege in the EFF vs. AT&T case.

"The privilege is being used to hide criminal activity -- embarrassing activity -- and protect the president from adverse publicity and close off the investigation," Weaver said.

The full story from the New York Times is here.