This administration has stretched the questionable legal provision beyond the breaking point, dismissing private suits.

By Philip Giraldi
April 9, 2015
The American Conservative

t has been observed that the Barack Obama administration has employed the state secrets privilege more than all preceding presidential administrations combined. There is a certain irony inherent in that fact as Obama ran for office in 2008 specifically committing himself to creating a more open and transparent government.

The contemporary version of the state secrets privilege was first successfully invoked in 1953 in a case involving military secrets. It was intended to provide the government with a mechanism to intervene in judicial proceedings if there were some danger that classified information might be revealed as part of the legal process. In practice, this has meant that if a plaintiff or defendant in a trial sought to use government information to help make his or her case the justice department (DOJ) would be able to intervene ex parte in camera and, after making its case, hopefully obtain a ruling from the judge that the information being sought was inadmissible on grounds of national security.

Originally the secrets privilege was used only rarely and it was also employed with considerable specificity, focusing, for example, on a document or testimony that the government was able to claim would do damage to national security or other significant equities. The department of justice guideline clearly states that the privilege cannot be invoked to “Conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment to a person, organization or agency of the United States government.” In practice, however, even if error or embarrassment is the real reason for the action, it can always be claimed that the issue involves national security, so the guideline is essentially toothless. Indeed, the very first assertion of the privilege in 1953 was itself fraudulent. After the papers relating to the crash of a military plane were finally declassified in 2000 it was subsequently determined that the driving force behind the cover-up was to avoid embarrassing the Air Force over the poor maintenance of its aircraft.

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