Injustice hides behind badge of security

By Robyn Blumner, Times Columnist
Published February 10, 2008

Late last month, Judith Loether sat before a congressional subcommittee and described herself as an ordinary housewife from the suburbs of Boston. "I've come to tell you my story," she said.

What Loether's story reveals is that when government is allowed to escape embarrassment or liability by hiding behind false and unexamined claims of national security, it often will.

Nearly 60 years ago Loether's father died in a crash of a B-29 airplane. He was a civilian engineer for an Air Force contractor, and when Loether's mother and two other widows sued, the lawsuit was stymied by government assertions that it could not disclose the accident report or the statements of the three surviving crew members without revealing information on secret equipment.

In United States vs. Reynolds, the U.S. Supreme Court, without even reading the evidence at issue, dusted off a British common law doctrine and ruled that the federal government could assert a "state secrets privilege" to hold back sensitive evidence in legal proceedings.

This is the very privilege that the Bush administration has been using as a trump card to avoid answering lawsuits against its rendition policies, torture and warrantless wiretapping. Clear injustices have been allowed to stand because credulous judges have dismissed cases as soon as the administration asserts the state secrets privilege.

A crimped reading of the Reynolds ruling has meant that courts have largely refused to be skeptical of the government's national security claims and examine the evidence independently (which can be done in camera without public disclosure).

They need to be reminded of the immortal words of muckraking journalist I.F. Stone: "If you want to know about governments, all you have to know is two words, 'governments lie.'"

That is, in fact, the postscript and moral of Loether's story. When she happened upon the accident report that had been declassified in the 1990s, Loether discovered that there were no military secrets in it at all. None. Instead, "it contained a truly sad and very dark comedy of errors that led to the terrible death of my father and eight other men," Loether told Congress. She learned, for example, that a heat shield that was supposed to be installed on B-29s to prevent fire never was.

"For the other families, for my father, my mother, my two brothers and me, my America did not see fit to do the right thing, to step up, admit to their mistakes, and compensate three widows," Loether said. "It was more important for them to get a privilege."

This privilege - born of deceit - has now allowed the Bush administration to escape liability for what it did to Khaled el-Masri. The German citizen was kidnapped, rendered to a CIA black-site prison in Afghanistan, and beaten and abused in custody before the administration realized it had the wrong man.

This privilege has also hindered lawsuits challenging the constitutionality of the administration's warrantless domestic wiretapping program. The administration has used it as a ready immunity against suit, no matter how illegally it acted.

This closing of the courthouse door to civil litigants is absurd and dangerous. It reduces the Constitution to the status of a suggestion box, to be followed at the pleasure of the president.

The notion that federal judges somehow can't be trusted to evaluate the legitimacy of national security claims defies current practice. For decades the federal courts have been reviewing classified information under the Classified Information Procedures Act. The law lays out procedures for federal judges to follow in evaluating the relevancy of highly classified evidence in criminal matters.

It is only in civil cases that the courts have closed the door and refused to act as a check on executive branch claims of secrecy.

This needs to change if our constitutional system is to regain its proper balance. Congress now has before it a bipartisan measure that would bring some possibility of legal redress to victims of this administration's unconstitutional tactics.

The State Secrets Protection Act, introduced by Sens. Ted Kennedy, D-Mass., and Arlen Specter, R-Pa., directs judges to review the classified evidence in order to prevent the privilege's misuse. The act would also allow litigants to make a preliminary case without the use of any secret evidence and it gives judges tools to order unclassified summaries of sensitive information.

Hearings on the bill have been scheduled for Wednesday by Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, a supporter.

Judith Loether describes herself as an ordinary housewife - an ordinary American - and in many ways she is. In 1948, her government hid its negligence toward her father behind a shield of national security. Today, our government hides its illegal practice of sending men away to be tortured with the same claims, making all Americans victims of its deceit.