Last month, the Obama administration invoked the state secrets privilege to advance the claim that allowing the federal lawsuit against Jeppesen DataPlan, Inc. to move forward in the Ninth Circuit Court of Appeals would seriously jeopardize National Security. The lawsuit was brought forward by the American Civil Liberties Union in 2007, " on behalf of five extraordinary rendition victims." The names of the five plaintiffs are Binyam Mohamed, Abou Elkassim Britel, Ahmed Agiza, Mohamed Farag Ahmad Bashmilah, and Bisher al-Rawi.
From The ACLU:
"The suit charges that Jeppesen knowingly participated in these renditions by providing critical flight planning and logistical support services to aircraft and crews used by the CIA to forcibly disappear these five men to torture, detention and interrogation."Spencer S. Hsu wrote in the Washington Post that the Obama administration has so far used the state secrets reasoning three times:
"The Obama administration has cited the state-secrets argument in at least three cases since taking office - in defense of Bush-era warrantless wiretapping, surveillance of an Islamic charity, and the torture and rendition of CIA prisoners. It prevailed in the last case last week, on a 6 to 5 vote by the U.S. Court of Appeals for the 9th Circuit." (Washington Post, Obama invokes 'state secrets' claim to dismiss suit against targeting of U.S. citizen al-Aulaqi, Sept. 25, 2010).The anti-transparency stance by the Obama administration further isolated America from the international community. In 2009, two members of the British High Court, Lord Justice Thomas and Mr. Justice Lloyd Jones, grilled the U.S. government for pressuring them to suppress their judgment about the case involving the torture of British citizen, Binyam Mohamed, at the hands of the CIA, which they made after looking at information that is in the public record. In a statement the judges said:
"In the light of the long history of the common law and democracy which we share with the United States it was in our view difficult to conceive that a democratically elected and accountable government could possibly have any rational objection to placing into the public domain such a summary of what its own officials reported, as to how a detainee was treated by them and which made no disclosure of sensitive intelligence matters."Scott Horton criticized the decision by the Obama administration to trump the state secrets card in this case in his article, "State Secrecy and Official Criminality":
And:
Indeed we did not consider that a democracy governed by the rule of law would expect a court in another democracy to suppress a summary of the evidence contained in reports by its own officials ... relevant to allegations of torture and cruel, inhumane, or degrading treatment, politically embarrassing though it might be.
And:
"We had no reason ... to anticipate there would be made a threat of the gravity of the kind made by the United States Government that it would reconsider its intelligence sharing relationship, when all the considerations in relation to open justice pointed to us providing a limited but important summary of the reports." (Quotes taken from The Independent, Senior judges attack US refusal to disclose evidence, Feb. 4. 2009).
"The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.President Obama defended his administration's use of the state secrets argument in his Rolling Stones profile by Jann S. Wenner:
The Holder Justice Department would have us believe that it is protecting state secrets essential to our security." (Scott Horton, Harper's, State Secrecy and Official Criminality Sept. 13. 2010.)
"People will say, "I don't know -- you've got your Justice Department out there that's still using the state-secrets doctrine to defend against some of these previous actions." Well, I gave very specific instructions to the Department of Justice. What I've said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I've got to protect operatives in the field, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger. There are going to be circumstances in which, yes, I can't have every operation that we're engaged in to deal with a very real terrorist threat published in Rolling Stone."On the face of it, "reasons of state" satisfies everyone's inner authoritarian, because sometimes secrecy is justified, for example, in cases that deal with military secrets, and other technical matters. But the seal of secrecy has been greatly overused by the U.S government, in areas where serious crimes have been committed by U.S. officials, and in other, less important areas. Marian Wang points out in ProPublica that:
"A recent secrecy report card, as we noted, found that government agencies spent nearly $9 billion in 2009 to maintain secrets on the books, while spending $45 million on declassifying documents. That works out to almost $200 spent on keeping secrets for every $1 spent declassifying them." (Wang, Read: Not-so-Secret ‘Secrets’ the Pentagon Paid Thousands to Destroy, Sept. 29. 2010.).Dollars aside, the ultimate price of state secrecy is a free country. The U.S. government's love of secrecy has produced destructive results in its own society, and around the world. 99.9% of the time the argument of state secrets is unjustified. It benefits the small clique of criminals that have influence in the government, and harms the whole country. Historian Garry Wills stated in an interview with Harry Kreisler that the excuse of secrecy has been used to keep necessary information from the American people, to keep hardworking, taxpaying citizens from finding out just how rotten the system in D.C. has gotten. Wills:
"You keep a secret even when it's not worth keeping. That's the whole point of secrecy now, that it's not to deceive an enemy, it's to deceive Americans, or congress, or the press." - Garry Wills, from the UC Berkeley program, "Conversations with History," February 10, 2010.The pattern of lying, and then hiding it from the American people goes back several decades. When you boil it down, state secrecy is a cover for state criminality, and nothing else. And, as stated above, much of the time it is more costly to keep secrets that don't need to be kept. Carl J. Friedrich reflected on the conflict between transparency and secrecy in modern democracies in his book "The Pathology of Politics: Violence, Betrayal, Corruption, Secrecy, and Propaganda." Friedrich made the same point as Wills, writing;
"Many of the matters secreted by such agencies as the CIA and the FBI could just as well be a matter of public record, and other such matters subject to scrutiny by Congress and other administrative agencies." (Friedrich, The Pathology of Politics. 1972. New York: Harper & Row Publishers: 190.)Most of the evidence of wars crimes and official deception that U.S. government insiders are hiding from the rest of the world is public knowledge. It is an open secret that U.S. leaders prefer a dictatorship in place of a democratic government; that 9/11 was done by high-level criminal conspirators inside the U.S. government; and that the rule of law means nothing to the U.S. government.
It is also an open secret that many Americans know what their government is up to in the "War on Terror."
So all is not lost. America's constitution is still the law of the land. The Patriot Act doesn't register in the hearts and minds of patriots. It is void. It is a piece of paper written by tyrants who think they can get away with their crimes and lies. But they won't. There is a growing resistance to the National Security State and its blanket assertions that there needs to be a permanent state of warfare and secrecy for Americans to remain free, and safe. America is still the land of the free. The more the Obama administration hide behind official secrecy, the more they will appear to the general public as a bunch of criminals covering for a bunch of criminals. The criminal traitors in Washington can try to completely suppress free speech, and the internet, but any such act won't sit well with the public. It may even cause a popular, widespread revolution.
America's tradition of free speech can save the country from total tyranny. As Tom Reifer wrote in May 2010:
"Though it's virtually unknown, unlike England and many other states, the US does not have an Official Secrets Act. This fact, along with our unique first amendment, is one of the great strengths and hopes of our democracy." (Reifer, "Secrecy, the Republic and the Supreme Court," Transnational Institute).The American people, and all people around the world, want to live in a free and open society. A government controlled by outlaws can't maintain credibility, or popular approval by selling the public "security," because real security is based on the rule of law. And people know this truth deep down, so the hundred year long war that U.S. officials speak of to justify the insane level of state secrecy, and unconstitutional executive powers, will end much sooner.
