Here's one example of how state secrets is abused and another. There are many, many examples. The idiocy will expand (meaning, the types of cases eligible for dismissal through the doctrine will increase) the longer federal agencies recognize the precedent created in Reynolds, regardless what the Vinson Court intended when it issued the opinion.

I am sure the State Secrets Doctrine has been used in other instances since 1953 to keep classified information that is vital to national security.

Seriously. This is some interesting stuff. If you believe everything you read on the internet. I personally don't. There are assuredly two sides to every story.

I'm trying to wrap my head around this one so bear with me.

Are you asking if we should have no state secrets or classified information?

No, because the idea behind the Doctrine is sound. I am sure the State Secrets Doctrine has been used in other instances since 1953 to keep classified information that is vital to national security. This sounds like a good time to use the..."Don't throw out the baby with the bathwater" saying...

The obvious downside is that if someone has a grudge, someone gets it wrong, or if someone just is an idiot... someone's "civil rights" might be violated. It's collateral damage, of which usually isn't life threatening. Usually it's just an aggravation. Whatever. Deal with it.

Seriously. This is some interesting stuff...umm... if you believe everything you read on the internet. I personally don't. There are assuredly two sides to every story.

I just let go of a sales person who had been with us for 5 years, and she told our HR person that there were conspiracies, etc. Really, her numbers were bad and she never showed up for work. Get it?

There probably are examples of abuse at the hands of the government, but those are in the millions. However, it's no more than a Sheriff abusing someone on a back road or an IRS policy abusing a certain echelon of American society. The links you provided surely are one side of the story.

That doesn't make them 100% true, or 100% accurate or complete.

I believe that if the US's security needs certain things swept under the rug, so be it. The unfortunate problem with that is that someone will abuse the power. This is true in positions of impunity. I once dated the ex-girlfriend of a Shreveport Cop, who then stopped me twice, once for DWI when I wasn't drunk and hadn't even been drinking. Know what I mean? What was I gonna do? We got a ticket this spring in Opeloussas, and just paid it. We were in traffic with cars on all 3 corners of my truck.

There is a need for the government to have "less than perfect" ways to investigate the people. We need wiretaps in people's homes and churches if the gov't thinks it's necessary. We need to be able to tap bars, cars, monitor cell phones, etc. How do you think these latest terrorist threats have been thwarted?

The obvious downside is that if someone has a grudge, someone gets it wrong, or if someone just is an idiot... someone's "civil rights" might be violated. It's collateral damage, of which usually isn't life threatening. Usually it's just an aggravation. Whatever. Deal with it.

1. Do you believe that the State Secrets Doctrine should be reexamined?

The privilege is a sound one, however its current usage is not.

As it currently stands, judges rarely (if ever) question whether or not the invocation of the States Secrets Privilege is an appropriate one. They defer to the executive. Of course, the judge at hand has the right (indeed, the responsibility) to examine the evidence and rule on the matter. Unfortunately, they rarely do.

An in camera hearing on the matter is the proper procedure. Judges, for whatever reason, choose not to do that type of hearing to settle the matter.

2. If so, how can it be modified to provide a balance between civil rights and national security interests?

Use it properly as noted above.

1. Do you believe that the State Secrets Doctrine should be reexamined?

The privilege is a sound one, however its current usage is not.

As it currently stands, judges rarely (if ever) question whether or not the invocation of the States Secrets Privilege is an appropriate one. They defer to the executive. Of course, the judge at hand has the right (indeed, the responsibility) to examine the evidence and rule on the matter. Unfortunately, they rarely do.

An in camera hearing on the matter is the proper procedure. Judges, for whatever reason, choose not to do that type of hearing to settle the matter.

It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.

Follow through with the logic, entspeak.

While it "may be possible" to satisfy the court, it may not be. I think the default should be that the judge will examine the evidence. The judge is under no compulsion to grant the motion to suppress evidence on the basis of the States Secrets privilege.

The judges need to exercise proper judgement. That is their job.

I tend to agree that this power can be abused and potentially has been abused. However, it is the judge's responsibility that a motion is granted for the right reasons. The States Secrets privilege has been denied, four times I believe, including in the Pentagon Papers case. Judges need to use better discretion.

Once again though Amlord- why have the doctrine at all? It has obviously been only used for political cover- what concievable scenario is there that a supreme court judge or Senate president shouldn't have the same access to "state secrets" as the president? There is NONE but political cover- needing to cover things up when they are doing bad or embarrasing things.

You do realize, of course, that court records are public documents, accessible by anyone. The State Secrets privilege is basically a defense that the government can employ. A judge is not obligated to grant it.

And in the Reynolds case, Amlord, the judge did his job - he ordered the government to provide the documents for him to examine in private. The government refused to comply. The District Court ruled against the government. The USSC reversed that decision. What logic is there to follow through on, Amlord? This case established the State Secrets Doctrine. You claim it is sound, but from it's establishment, it is apparent that it isn't because of the very thing you discuss - it allows for the bypass of an in camera hearing.

If the District Court Judge in the Reynolds case had been allowed to see the documents - if the government had complied - it would've been apparent that there was no sensitive information that couldn't be divulged. But the government refused in order to cover its butt and the USSC supported that refusal. It is that ability to refuse that is part of the State Secrets Doctrine. So, how can you consider such a doctrine sound and then blame judges for adhering to it? The doctrine keeps these documents from judicial review. It's not just that it can be abused... any rule can be abused. This doctrine - as it stands, however, is an open door to abuse... it's easy for the government to abuse. That's what needs to change. So, how do we change it?

Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.

So up until the case reached the USSC, it was okay.

Reynolds says:


The court must be satisfied that the evidence should be withheld. It can be satisfied either by viewing the evidence or by other means. In either case, the decision remains in the hands of the judiciary.

Indeed, in the earlier stages of judicial experience with the problem, both extremes were advocated, some saying that the bare assertion by the witness must be taken as conclusive, and others saying that the witness should be required to reveal the matter behind his claim of privilege to the judge for verification.[Footnote 23] Neither extreme prevailed, and a sound formula of compromise was developed. This formula received authoritative expression in this country as early as the Burr trial.[Footnote 24] There are differences in phraseology, but in substance it is agreed that the court must be satisfied from all the evidence and circumstances, and "from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 486-487 (1951).[Footnote 25] If the court is so satisfied, the claim of the privilege will be accepted without requiring further disclosure.

Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It MAY be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers
<snip>

In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.[Footnote 26] A fortiori, where necessity is dubious, a formal claim of privilege, made under the circumstances of this case, will have to prevail. Here, necessity was greatly minimized by an available alternative, which might have given respondents the evidence to make out their case without forcing a showdown on the claim of privilege. By their failure to pursue that alternative, respondents have posed the privilege question for decision with the formal claim of privilege set against a dubious showing of necessity.

There is nothing to suggest that the electronic equipment, in this case, had any causal connection with the accident. Therefore, it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets. Respondents were given a reasonable opportunity to do just that, when petitioner formally offered to make the surviving crew members available for examination. We think that offer should have been accepted.

If it "may" be possible, then the possibility exists that it may not be possible. Whether the judge can be convinced without an in camera hearing is up to the judge and the argument of the lawyers.

I agree with you on the merits, but disagree with your conclusions.

The USSC in Reynold said exactly what you are saying--a judge is the final arbitor. What they disagree with the District court on is whether or not the lower court made the correct decision. They ruled that States Secret privilege did apply and noted the specifics. Now, we see in hindsight they were wrong. However, the Court is not infallible.

The reasoning is sound although the individual implementation in a given case may not be the correct one.