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The Federal Courts Bow Down, Abjectly, To The Secrecy Demands Of The National Security State

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Lawrence Velvel
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            It seems to me possible that a forthcoming book by a gentleman named Mark Gerstein is going to say things that will further impress this on the public consciousness.  Recently Dan Ellsberg sent various people drafts of the Preface and the Afterword he wrote for the book.  One gathers from them that secrecy was the nourishing womb of disasters right and left discussed by Gerstein.  E.g., the Colombia and Challenger disasters, the Vioxx situation, Chernobyl, etc.  (Ellsberg also mentions one of the kings of this genre:  what the tobacco companies did.)

 

            Ellsberg discusses a number of reasons why people keep things secret.  Most involve self interest.  But it is also true that disasters are enabled in a different way by secrecy:  when information is not kept confidential, i.e., when it is not secret, when people learn of it, they start asking questions about the logic, rightness, feasibility, practicability, etc. of what is being planned or done.  From these questions, from well placed objections, and from the debate the questions and objections spawn comes truth, and with truth comes avoidance of disaster and improvement of policy and action.  This is a simple idea, one known for decades or hundreds or even thousands of years.  But it is not one that gets credence in a national security state, nor one that the federal courts pay attention to or even mention when the executive makes its nigh ever present claim of national security, state secrets or executive privilege.  The ridiculous opinion of Judge Jones, though meaningless in practical terms because the dates of Plame’s service are in fact public, illustrates the courts’ abject bowing down to executive claims of national security and willingness to try to suppress truth.  And the fact that Judge Jones’ absurdity was perpetrated by a Clinton appointee shows that it matters little which party a judge’s appointing President comes from. *

 


* This posting represents the personal views of Lawrence R. Velvel.  If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com.  All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law.  If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.   

VelvelOnNationalAffairs is now available as a podcast.  To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page.   The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com 

 

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.
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