State Secrets Privilege v. Accountability

An insight into the views of the Republic's founders can be found in their response to the English royal perogative "the King can do no wrong," that imparts immunity to the Sovereign from suit.  James Iredell, before the North Carolina constitutional ratifying convention in 1788, remarked of this British maxim, "We have experienced that he can do wrong, yet no man can say so in his own country."  The founders intended to leave sovereign immunity behind by making the United States government one where ambition is made to counteract ambition by separating powers between different branches and by enshrining the rule of law, rather than rule by man, as the DNA of the government.

Unfortunately the Republic's system of accountability and rule of law has been undermined by increasing assertions of the state secrets privilege by an agressive and excessively secretive executive branch and an overly deferential judicial branch often unwilling to examine the assertion (a notable and hopeful exception occurred last year in one of the National Security Agency warrantless wiretapping cases). Ever since the 1953 Supreme Court ruling in United State versus Reynolds, a ruling which "rests on a lie," the state secrets privilege has shut down court proceedings by denying access to documents and information necessary in order to have a fair adversarial process in court, thus thwarting accountability.

One of the most egregious examples of executive abuse of the state secrets privilege is the Justice Department invocation of the privilege in the case of Sibel Edmonds, a former FBI contract linquist, who blew the whistle, who has alleged corruption in the FBI.   But Edmonds was the wrong whistleblower to pick on: Edmonds and her allies are fighting back and Congress needs to hold hearings on the use and abuse of the state secrets privilege.  After all, we fought a war for independence so that when the people's government does wrong, we can say so.

-- Nick Schwellenbach