Note: This article is based on a piece by Steven Aftergood, posted below. In the Jan. 30 number of Secrecy News, Aftergood issued a clarification: "The origins of the state secrets privilege apparently derive from English common law and certainly predate the 1953 Supreme Court ruling in U.S. v. Reynolds. Therefore it was an error to write (SN, 01/26/04) that the Reynolds decision 'established' the state secrets privilege. (Thanks to MB.)" I have therefore changed 'established' to 'asserted' in what follows. --MKJ

Commentary

GUARDING THE GUARDIANS
By Mark Jensen

January 26, 2004

Steven Aftergood, in the article copied below, calls our attention to a fascinating case. An important 50-year-old Supreme Court decision is being challenged by descendants to parties in the case. These developments are a symbol of what's going on in American society today.

The challenge to United States v. Reynolds by three daughters of airmen killed in a 1948 crash of a B-29 Superfortress bomber can be regarded as a litmus test of a larger struggle.

In 1953, the Supreme Court decision in U.S. v. Reynolds asserted the "state secrets privilege." For more than fifty years, the state secrets privilege has enabled the military and its commander in chief to exempt themselves from the scrutiny of the democratic society their duty it is to protect. It's one of the things that has helped the military-industrial complex to grow its way into US society to such an extent that, today, anti-militarism has come to seem anti-American to most of our fellow citizens.

But what if the Reynolds case was built on lies?

As Steven Aftergood relates, the daughters of the men killed in the crash of the Superfortress are now in possession of documents that suggests that the Reynolds case was decided on false evidence given by military authorities. The government says it isn't so. But if courts cannot examine "state secrets," who can tell? If there are "military matters which, in the interest of national security, should not be divulged," and not even a federal court can examine them, how will we ever know?

The problem of controlling those who are in control was famously formulated by the Roman historian Tacitus as the question 'Quis custodiet custodes?' ('Who's guarding the guardians?') It's one of the fundamental political problems. The American solution was the system of checks and balances devised by James Madison and the authors of the US Constitution. Powers were divided among the legislative, executive, and judicial branches of government, and each was given the capacity to interfere with the others.

The system worked well enough for 150 years. It enabled the progressive era reforms to save the democratic character of our government early in the 20th century. The first great corporate power grab, led by the "robber barons" and the trusts, was turned back. Democracy prevailed. The selection of candidates through primaries (I write this on the eve of the New Hampshire primary), the exposure of corporate greed and ambition by muckrakers like Ida Tarbell, public ownership of utilities, and the defeat of the great urban political machines were only a few of the accomplishments of that time.

The Cold War placed new strains on the system, though. U.S. v. Reynolds was supposed to protect our society from Communist subversion. But by making the actions of one branch of our government completely invisible to the others, it was itself a subversion of our constitutional system.

Many other similar compromises were made in what scholar Philip Bobbitt calls "the Long War" (1914-1991) in his recent book, The Shield of Achilles. Bobbitt thinks of this period as a long epic struggle among fascism, Communism, and parliamentary democracy to determine the prevailing form of the nation-state. When this struggle was won by the Western parliamentary democracies, they celebrated it as a victory for "democracy" and "freedom." But what if the war by which this struggle was won has led to the creation of institutions that are more powerful than those that parliamentary democracy claims to uphold?

It's an historical fact that the national security state created institutions that now dominate our national government. Most of their names (if not their budgets and their operations) are known to everyone: the National Security Council, the National Security Agency, the Central Intelligence Agency, the Department of Defense (a.k.a. the Pentagon), etc. The national security state also created the military-industrial complex.

Although the media seem to regard the notion of a "military-industrial complex" as a piece of radical rhetoric, the term is, in fact, merely descriptive. It was coined by Dwight David Eisenhower. As he left office in January 1961, President Eisenhower warned against precisely what has come to pass: "acquisition of unwarranted influence" endangering "our liberties" and our "democratic processes." Who knows? Perhaps Eisenhower was thinking specifically of U.S. v. Reynolds when he wrote those words.

Many hoped that with the end of the Cold War the national security state and the military-industrial complex would begin to fade away. Certainly the world has big enough economic, environmental, and human problems to justify retiring the military-industrial complex. The resources that the world, with our wealthy nation in the vanguard, has been pouring into the military for half a century could be well spent elsewhere. That's easy enough to see. When historian Michael Sherry wrote the conclusion of a volume on the history of the military-industrial complex entitled In the Shadow of War in mid-90s, he predicted that the US would "drift away" from militarization, since "the strategic, ideological, and economic foundations of militarization -- never as solid anyway as its champions had maintained -- had eroded to the point of disappearing."

Instead, we find ourselves facing what would appear to be the military-industrial complex engaged in the second great corporate power grab in American history. After all, it's not much of an exaggeration to say that the executive branch today is essentially owned by the military-industrial complex.

Dick Cheney, its Èminence grise, incarnates all aspects of the modern American military-industrial-Congressional complex (as Eisenhower called it in an earlier draft of his 1961 speech). Mr. Cheney, in fact, has done nothing in his entire professional life except serve the military-industrial complex: as Congressman from Wyoming (1979-1989), as Secretary of Defense (1989-1993 -- though he had never served in the armed forces), and as chairman and CEO of Halliburton, a Dallas company specializing in oilfield work with many ties to the defense industries, after prior experience in the executive branch as White House chief of staff in the Ford administration beginning in 1975.

Yes, the military-industrial complex and the national security state have come back with a vengeance. After an attack by a transnational terrorist organization that has only 200 or 300 sworn members (according to an article in Washington Post of Dec. 25, 2003, by Peter Bergen, the author of Holy War, Inc.: Inside the Secret World of Osama bin Laden), these entities are telling us that we need to change the very nature of our society and turn its direction over to them. Isn't that what they mean when they tell us "the world has changed" since September 11? A vast securitarian political project is underway whose final shape is hard to foresee. But that it must represent the death knell for the American experiment in liberty is clear enough -- clear enough to Gen. Tommy Franks, for example, who just before the holidays predicted in an interview that the US Constitution would not survive another major terrorist attack on American soil.

We have come to a crucial moment in the history of this nation. Commentator William Pfaff is calling 2004 "the year of all the answers." The challenge to U.S. v. Reynolds is a litmus test. It will help us to answer the question: Is this still a democracy, or have we lost our capacity to "guard the guardians"?

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GOVT DENIES FRAUD IN 1953 STATE SECRETS RULING
By Steven Aftergood

Secrecy News
January 26, 2004

http://www.fas.org/sgp/news/secrecy/index.html

U.S. government attorneys last week denied allegations that a 1953 Supreme Court decision which enshrined the concept of the "state secrets privilege" was based on a fraudulent factual foundation.

The Supreme Court decision in question, United States v. Reynolds, provides the legal precedent for the executive branch to assert that there are "military matters which, in the interest of national security, should not be divulged," not even to a federal court.

Survivors and heirs of the original plaintiffs in that 1953 case have recently contended that the government relied on fraudulent national security claims to win the decision.

The Reynolds case originated over half a century ago when the widows of three crew members who died in a 1948 crash of a B-29 Superfortress bomber requested accident reports on the crash. The Air Force denied the request and filed affidavits with the Supreme Court claiming that the withheld reports contained information about the aircraft's secret mission and described secret electronic equipment on board that had to be protected from disclosure. The Court, citing that claim, ruled in favor of the Air Force and established the "state secrets privilege."

But in early 2000, one of the daughters of the deceased crew members acquired newly declassified copies of the documents that the Air Force had withheld and was astonished to find nothing corresponding to what the Air Force affidavits had portrayed.

"Contrary to the statements in the Affidavits, on which the Supreme Court expressly relied, not one of the documents... contain any secret or privileged information," according to a new complaint, filed last October. "The documents consist, instead, of admissions of negligence on the part of the Air Force."

The survivors and heirs of the original Reynolds plaintiffs said that the Court was defrauded by the Air Force and that they were improperly deprived of evidence and compensation to which they were entitled.

Earlier last year, the plaintiffs had petitioned the Supreme Court to reopen the case (Secrecy News, 03/04/03), but the Court rejected the motion to file the petition (SN, 06/24/03).

Consequently, the Reynolds survivors, represented by the same law firm as 50 years ago, filed a new initial complaint in federal district court. See Herring v. United States, filed October 1 in the Eastern District of Pennsylvania, here:

http://www.fas.org/sgp/jud/herring1003.pdf

Last week, the government moved to dismiss the case, arguing that the plaintiffs are not qualified to assess the original sensitivity of the now declassified documents.

"The mere fact that the information ... may strike the plaintiffs today as innocuous, trivial, or unimportant, is simply not probative" of whether they were sensitive 50 years ago, the government stated.

Moreover, even if it were true that government witnesses had perjured themselves in the 1953 case, that would not legally constitute a "fraud upon the court," the government said.

See the Defendant's Motion to Dismiss the new complaint, filed January 23, 2004 (35 pages, 780 KB PDF file):

http://www.fas.org/sgp/jud/herring0104usbrief.pdf

For some, the dispute over the history of the Reynolds case raises very current questions about the extent of judicial deference to the executive branch in matters of national security.

The disclosures of the documents originally denied in 1953 "afford a rare opportunity to compare a government privilege claim with the underlying, allegedly 'secret' information," wrote two attorneys in a recent critique of the matter.

"This comparison highlights the risk of permitting the executive branch to determine, without close judicial scrutiny, whether relevant government information may be withheld from discovery," according to D. Churchill and E. Goldenberg in a paper entitled "Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds," published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003.

"Use of the state secrets privilege in courts has grown significantly over the last twenty-five years," note William G. Weaver and Robert M. Pallitto of the University of Texas at El Paso.

And "recent cases indicate that Bush administration lawyers are using the privilege with offhanded abandon," they write in a comprehensive study to be published this year in Political Science Quarterly.

In November 2001 President Bush issued executive order 13233 that would permit former presidents to independently assert the state secrets privilege to bar disclosure of records generated during their tenure.

More than that, the Bush order would make the state secrets privilege hereditary, like some divine right of kings, enabling the heirs of deceased presidents to assert the privilege after their death.

"This is a power heretofore unrecognized either in courts or politics," Weaver and Pallitto observe.