Posted by Jonathan Adler:
Luban: "You Cover It Up, You Own It ":
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234284785
David Luban has an [1]interesting commentary on the Obama
Administration's decision to continue the assertion of state secrets
privilege in Mohamed et al v Jeppesen Dataplan, Inc.. A taste:
The state secrets privilege is the so-called "nuclear option" in
litigation, which makes lawsuits against the government vanish
without a trace by declaring unilaterally that all the facts the
plaintiffs would use to prove their case are state secrets. With no
facts to back the claim, plaintiffs' cases must be dismissed.
This one is particularly egregious, because most of the facts are
well known and well documented through other sources. One question
is whether the state secrets doctrine concerns facts or documents.
That is: does it mean that government documents cannot be entered
into evidence because they are secret? Or does it mean that the
underlying facts are "state secrets" that can never be ventilated
in an American courtroom, even if they are well known everywhere
else in the world and the plaintiff can prove them using publicly
available evidence?
The latter position -- that the state secrets privilege is a rule
about facts, not about evidence -- is absurd, but it is the
government's position. . . .
. . . Nobody doubts that there are legitimate state secrets -- but
the Bushies, and now apparently the Obama/Holder DOJ, thought that
anything that makes the U.S. government look bad should be a state
secret. The theory is that disclosing government crime or
misconduct would embarrass the government in the eyes of the world,
and whatever embarrasses the government in the eyes of the world
harms national security. This misbegotten theory holds that
sunlight isn't the best disinfectant, it's the source of hideous
wasting disease. Government wrongdoing must be concealed because,
well, it's government wrongdoing.
References
1. http://balkin.blogspot.com/2009/02/you-cover-it-up-you-own-it.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
