State Secrets of the Shadow Government

>It took forty years for the U.S. government to apologize for summarily interning Japanese-Americans during World War II and offer limited reparations to victims, pursuant to the Civil Liberties Act of 1988.  Perhaps this gesture was better late than never (although it should not be confused with justice) and perhaps, if the U.S. and any regard for liberty and fairness endures, forty years from now a future president will apologize for the summary detention and torture of terror suspects authorized by President Bush and defended by President Obama.     What's to be done in the meantime?  

This is an odd as well as awful moment in history, when anti-government fervor is matched only by political and judicial support for extraordinary exercises of government power, when the private lives of individual citizens are almost entirely transparent, thanks to pervasive corporate and state surveillance, while crucial government operations are almost entirely opaque.  Has warfare between Americans and their government ever been so assymetrical?  
   
Mohamed v Jeppesen, the recent 9th circuit ruling dismissing claims for relief by torture victims in deference to the Administration's state secret's claims, has made clear that, as Andrew Sullivan observed, there are now "two classes of people in this country: one above the law - even a law as profound as that against torture - and those outside the government obliged to obey it."  (Given the detention and torture of suspects charged and convicted of nothing, I might add a third class:  people outside the government who are merely suspected of disobeying or intending to disobey a law.)    
   
There are also, in effect, two governments in this country - the government conducted more or less in public by elected and appointed officials and the shadow government of private contractors and mercenaries who enable the national security state.  (The two public systems of justice for rich and poor people respectively, especially in criminal cases, is a subject for another post.)  Voters naturally train their angst and anger on elected officials and are either oblivious, indifferent, or grateful to the operatives behind the curtain, of whom we catch an occasional glimpse.  The Washington's Post's extensive expose of "Top Secret America" and the nation's redundant, unwieldy, secretive, unaccountable and questionably effective post 9/11 intelligence apparatus elicited less interest than Lindsey Lohan's legal troubles.   The Administration probably doesn't need to invoke a state secrets doctrine to deflect public attention from the shadow government's abuses.

But it may need to protect contractors from legal liability, to ensure their continued cooperation.  It's worth stressing that Mohamed v Jeppesen was a civil suit against a private contractor, charged with providing transport and other logistic support to the CIA's rendition and torture program.  The 9th circuit acknowledged that the plaintiff's case against Jeppesen could conceivably be established without resort to any privileged evidence, given the evidence already in the public record, but it dismissed their claims anyway, arguing that Jeppesen's defense would necessarily involve exposure of state secrets that would threaten our security.  It is also worth noting that the legal precedent on which the Court relied, a 1953 case, U.S. v Reynolds, involved a state secret claim by the government found decades later to have been a fraudulent effort to avoid liability in a civil suit for the wrongful death of three civilians in military place crash.  In other words, the court based its decision to trust the government's state secrets claim on a prior case in which a similar claim proved entirely untrustworthy.
   
It rationalized judicial deference to the secrecy claim in Jeppesen partly by explaining that the executive could voluntarily acknowledge and try to remedy the harm suffered by torture victims; or Congress could investigate alleged abuses by the executive branch and enact private bills to aid victims as well as remedial legislation addressing similar claims in the future.  The 9th circuit's judges are probably not delusional, so it's fair to call them disingenuous for suggesting that executive or congressional remedies in this case are practical as well as theoretical possibilities.  There is, obviously, virtually no commitment to conducting the shadow war on terror with regard for justice or due process in either the Congress, the Administration (or, it seems, the majority of voters.)  And, there will be no judicial opportunity to remedy the abuses of this war if courts continue to defer to executive clams of secrecy.  
   
The Administration's credibility in raising a state secrets claim could be tested again soon in Al-Aulaqi v Obama, the challenge to its targeted assassination program, brought by Nasser Al-Aulaqi, whose son is reportedly on the Administration's kill list.  (Al-Aulaqi is represented by the Center for Constitutional Rights and the ACLU.  The government's response to his complaint, seeking injunctive relief, is due on September 24th.)  This is not a case that Obama inherited from the Bush Administration; responsibility for the proposed assassination of Al-Aulaqi, an invocation of a state secret doctrine to prevent judicial review of targeted killings, along with any other defense the Administration raises, and the meta-failure to expose and restrain his shadow government will rest with Obama alone.  

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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