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Don Leka: Our Independent Judiciary and Other Myths
Jul 5th, 2010 by Sam

Presented on July 3, 2010…

Let’s picture a country that touts the independence of its judges.  But whenever a citizen sues the government, say for breach of contract, and the government worries that embarrasing facts may come out during the litigation, then a standard ritual takes place.  A government official certifies that the case must be dismissed because State Secrets might be revealed in the course of the litigation.  So the judge dutifully accepts the certificate at face value and dismisses the case.  Now the question is:  what country are we talking about?

You might say it could be Russia, and this is a practice left over from the Soviet system.  Or you might say it shows that China still controls the judiciary as tightly as it controls internet access.  Or maybe the Ayatollahs in Iran are at it again.  But nay, I speak of The United States, the land of three co-equal branches of government as we all learned in school.  Except our judiciary has abandoned its independence when it comes to holding the government to the same conduct as all other defendants.  And the scary part is the judges do it consistently, enthusiastically, and with full patriotic fervor.

The State Secrets doctrine grew out of the case of McReynolds versus United States, decided by the Supreme Court in 1953.  Chief Justice Vinson wrote the opinion, holding that when a trial court receives a statement from a responsible government official informing him that the case before him would likely lead to disclosure of state secrets or information jeopardizing national security, the judge should give serious consideration – in other words, defer – to the request from that government official.  The McReynolds case was wrongly decided, a product of cold war hysteria.  But the thing about the law is, when a legal doctrine veers in the wrong direction it often fails to correct itself – the erroneous thinking just expands organically.  And so the State Secrets Doctrine has extended its reach over the years.  For example, the government doesn’t have to be a party to the case – it can intervene in a private suit between two private companies and get the complaint dismissed.  And the claim for privilege (and therefore dismissal) doesn’t have to involve classified information.  The government has successfully argued that the pattern of public information as disclosed during the litigation may reveal something to foreign spies.  And even if the plaintiff claims that it does not need and will not disclose any sensitive information for its case, the government simply says it can’t defend itself without revealing such information, regardless of what the plaintiff says.  Case dismissed.

So you can look at this doctrine two ways.  First, this certificate claiming a State Secrets Privilege is given by a responsible government official, and we know the offical would not falsify a claim because that would be irresponsible.  Nowadays in the Obama administration, a really, really responsible official – Attorney General Eric Holder – signs the certificate so we really, really know we can rely on it.  The other view says that our government is predicated on separation of powers – each branch is subject to checks and balances against the other branches.  This principle holds that the executive branch should not be the final judge of its own claim of privilege.

I suppose we could call this topic the ultimate moot point, since by definition no one gives independent scrutiny to the government’s claim – not even a judge, much less the media or the public.  So the claim can never be disproven.

But wait.  There was one instance where the information became available to the public, 40 years later.  And it happened in McReynolds vs. United States itself, the case that started the whole doctrine.  The case arose from the crash of an Army Air Foce B-27 in 1948, carrying several civilian engineers.  The engineers were testing out a guidance system for missiles – the system was not guiding the airplane, it was measuring accuracy along ground monitoring stations.  Widows of three engineers aboard the plane brought a wrongful death suit against the government for negligence.  The plaintiffs asked for a copy of the accident report – the report of the investigation conducted by the Inspector General after every airplane accident.  Lawyers for the Army Air Force refused to provide it, saying the engineers were on a secret mission (that much was true) and the accident report would reveal highly important military secrets.  They argued the material was so sensitive they were not allowed to share it even with lawyers for the Department of Justice who would be trying the case.

The trial judge used standard procedure when a party refuses to turn over relevant documents, even to the judge for independent scrutiny.  He defaulted the Government and went on to assess damages.  The government appealed, and the circuit court, again using standard precedents, confirmed the dismissal.  It was the Supreme Court, led by Truman’s poker buddy Fred Vinson, who reversed the judgment and sent it back to the trial court.

But in the interim the Records Department had declassified the accident report, using standard procedures, even while the case was going through appeals.  No one realized this, and the document sat in storage until President Clinton, in 1993, made most government records available to the public if they were older than 40 years.  And when the original plaintiffs (or their offspring) finally were able to read the report – guess what?  It contained not one word about the secret mission.  It was a damning catalogue of negligence and inattention, ignored safety upgrades, and sloppy maintenance and operating procedures that led the plane inevitably to fail while in flight.  The record makes it obvious that the Secretary of the Army Air Force perjured himself in his sworn declarations and government lawyers participated in defrauding the Supreme Court.  When the plaintiffs tried to point this out, in the late 1990’s, no court wanted to be bothered with this sort of challenge to our patriotic State Secrets Doctrine.  The denial of justice to the families of those engineers was a dead issue.

So, even though the state secrets doctrine was founded on a fraud, it continues to survive.  It was Coleridge who once said patriotism is the last refuge of the scoundrel.  We now know that the scoundrel’s first refuge is claiming the privilege of secrecy.

This is Don Leka from the Cause and Effect World.

Feb 13: Darwin Day and the bottom line: genes that get passed on win
Feb 11th, 2010 by Sam

It’s Darwin Day!!!! hmmm, doesn’t do it for you, does it? Some old funny-looking guy with a beard… monkeys… church/state….

A little dry, isn’t it?

Well, let’s sex it up folks!!!! Evolution IS sexy… I mean, it’s all about passing on the genes baby, and we KNOW how that’s done, don’t we?? (wink, wink)

Joining us:

  • Dr. Kerim M. Munir, MD, MPH, DSc; Director Center for Autism and Related Disorders; Children’s Hospital; has been studying the early life of Charles Darwin for many years, combining his vast knowledge of children’s developmental psychology with his personal connection to Darwin – family members of his have attended the boarding school where Darwin spent his formative years and the seeds of his education were sown.  Dr. Munir will share his unique insights into the man who changed everything.
  • Don Leka; musician and recovering lawyer, shares his essay “Stop Picking on Darwin”

Podcast

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