In the American system of government, one of the executive branch's most powerful tools is the ability to decide what information can be classified, or withheld, from anyone whom the executive branch does not want to give access. In any given circumstances, the government can use this authority, the same authority, to protect the nation from destruction AND permit the government to violate the law; to torture, even to kill. Presidents for 80 years have jealously guarded this privilege, because it provides cover for virtually every tough decision they may have to make. Ordinarily, because presidents can be held accountable for their actions through elections, we might, as a people, be prepared to sanction an unchecked power like this based solely on trust.
But this is fundamentally misleading. The president himself, and the president's staff, almost never decide to classify things. In the Bush Administration, though President Bush specifically amended an executive order to allow Vice President Cheney to classify programs and reports, it is not clear whether this authority was given prophylactically; most of what the Vice President supervised, including the special mission units of the special operations command, already operated in near-total secrecy.
So who classifies things? Who has this power? Government officials possessing something sexily titled "original classification authority." There are thousands of people with "OCA." You've never heard of most of them. They range from the current commander of Delta Force to senior accountants at the Office of Management and Budget. Once something is classified, even if improperly, there are very few systems of accountability to make sure that the power is not being abused for the sake of an abuse of power. People with OCA are citizens of the republic, and they are loyal, but they are also citizens of their agencies and government departments.
Say that you'll never, never, never need it. One headline, why believe it? Everybody wants to rule the world.
This is a problem for the judiciary branch. Today, the Ninth Circuit court of appeals essentially conceded that law and precedent do not give, and should not give, the judiciary branch an equal claim to determine whether the government correctly classified information. They did so in an en banc ruling in the case of five men, including Binyan Mohammed, who alleged that Jeppesen Dataplan, a flight logistics company, helped the CIA render them to other countries where they were tortured. The U.S. government had asserted the State Secrets Privilege. The plaintiffs insisted the government asserted the privilege to cover up its complicity in torture. The court today held that, in essence, it does not matter if the information in the case was used to cover up torture, so long as the privilege was properly asserted.
So what does the court have to say about who gets to make that judgment? By way of background, judges have routinely, in recent years, been asking to at least see the classified information that the government insists is so sensitive that even the protections afforded to classified information in other trials are not sufficient. It says very little. The majority cites previous decisions that are, essentially, fist shakers: the government must not use the privilege capriciously; courts must regularly review the underlying information; the executive branch is not the "sole" determinant of whether information is properly classified. But at the same time, the court acknowledges, or, rather, asserts, based on precedent, that only the executive branch is capable of making that determination. So the effect is that the government will almost always have a trump card.
In the Ninth Circuit case, the majority held that an absolute privilege might lead the way to "intolerable" abuses of power. It's hard to think of anything more intolerable than torture, but perhaps the underlying evidence that has been made public about the plaintiff's claims is weaker than it seems. In any event, if the privilege was asserted properly in this case, and the plaintiffs were indeed tortured with the complicity of the U.S. government, then the court is simply providing an extremely light check on this most magnificent and easy-to-abuse power.