State Secret's Privilege Is Established On A Lie: From Reynolds To Al Masri - will we ever learn?

[Really_Not_All_That_Bright]

@ivan_astikov

If Obama wanted to dispel or defuse the doubts of “The Birthers” and those who think he is just a shill for the Tri-Lateral Commission and it’s cronies, all he’d need to do is make that bill his biggest priority and show that he is really serious about change.

I doubt Obama really gives a shit about the Birthers or people who worry about the pernicious influence of the Trilateral Commission.

@Little_Nemo

No, they would just say that shows Obama wants to reveal classified information - just like an anti-American Muslim terrorist would.

Jesus could return and personally endorse Obama and that wouldn’t be enough for the birthers.

“Look! He was endorsed by a Palestinian!”

[Little_Nemo]

Despite Plaintiffs’ allegations, a review of the complaint and the exhibits attached thereto, including the declassified documents, does not suggest that the Air Force intended to deliberately misrepresent the truth or commit a fraud on the court. Because a determination of what information should be kept confidential in the interest of national security involves predictive judgments about the potential future harm of premature disclosure, informed expertise and even intuition “must often control in the absence of hard evidence.” Kaluse v. Blake, 428 F. Supp. 37, 38 (D.D.C. 1976). In all likelihood, fifty years ago the government had a more accurate understanding “on the prospect of danger to [national security] from the disclosure of secret or sensitive information” than lay persons could appreciate or than hindsight now allows. Halperin v. NSC, 452 F. Supp. 47 (D.D.C. 1978), aff’d 612 F.2d 586 (D.C. Cir. 1980). Plaintiffs take aim at the factual foundation of the military secret privilege, suggesting that concealing this accident investigation report constituted an unconscionable plan or scheme to improperly influence the Court such that the privilege resulted from an undeserving test case. But, because “each individual piece of intelligence information, like a piece of [a] jigsaw puzzle, may aid in piecing together bits of information even when the individual piece is not of obvious importance itself,” Fitzgibbons v. CIA, 911 F.2d 755, 763 (D.C. Cir. 1990), it is proper to defer on some level to governmental claims of privilege even for “information that standing alone may seem harmless, but that together with other information poses a reasonable danger of divulging too much to a `sophisticated intelligence analyst.’” In re United States, 872 F.2d 472, 475 (D.C. Cir. 1989) (quoting Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978). “Even the most apparently innocuous [information] can yield valuable intelligence.” Knight v. CIA, 872 F.2d 660, 663 (5th Cir. 1989).

This seems incredibly thin. If I’m reading it correctly, the court is essentially saying, “All the evidence that was presented to us would lead to one conclusion. But, hypothetically, other evidence might exist which would support a different conclusion.”

[Polerius]

@Bricker

Despite Plaintiffs’ allegations, a review of the complaint and the exhibits attached thereto, including the declassified documents, does not suggest that the Air Force intended to deliberately misrepresent the truth or commit a fraud on the court. Because a determination of what information should be kept confidential in the interest of national security involves predictive judgments about the potential future harm of premature disclosure, informed expertise and even intuition “must often control in the absence of hard evidence.” Kaluse v. Blake, 428 F. Supp. 37, 38 (D.D.C. 1976). In all likelihood, fifty years ago the government had a more accurate understanding “on the prospect of danger to [national security] from the disclosure of secret or sensitive information” than lay persons could appreciate or than hindsight now allows. Halperin v. NSC, 452 F. Supp. 47 (D.D.C. 1978), aff’d 612 F.2d 586 (D.C. Cir. 1980). Plaintiffs take aim at the factual foundation of the military secret privilege, suggesting that concealing this accident investigation report constituted an unconscionable plan or scheme to improperly influence the Court such that the privilege resulted from an undeserving test case. But, because “each individual piece of intelligence information, like a piece of [a] jigsaw puzzle, may aid in piecing together bits of information even when the individual piece is not of obvious importance itself,” Fitzgibbons v. CIA, 911 F.2d 755, 763 (D.C. Cir. 1990), it is proper to defer on some level to governmental claims of privilege even for “information that standing alone may seem harmless, but that together with other information poses a reasonable danger of divulging too much to a `sophisticated intelligence analyst.’” In re United States, 872 F.2d 472, 475 (D.C. Cir. 1989) (quoting Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978). “Even the most apparently innocuous [information] can yield valuable intelligence.” Knight v. CIA, 872 F.2d 660, 663 (5th Cir. 1989).

What a crock of shit. If we buy this argument, the government never has to release any information regarding anything, ever, since, no matter how trivial the information seems to the lay person, some foreign intelligence analyst might piece it together with something else and come to a conclusion that hurts national security.

[ivan_astikov]

My thoughts too. It seems far too vague an explanation to be of any value.

Here’s some of the opinions of Justice Fred Vinson on the matter.

The instant case bears comparison to the privilege against self-incrimination.[SUP]1[/SUP] Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses[SUP]2[/SUP].

Regardless of how it is articulated, some kind of formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers[SUP]3[/SUP]. 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. At this time, we cannot escape judicial notice that the country is in vigorous preparation for national defense.

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

The decision of the trial court and appeals court is reversed and remanded.

1. That the government is comparing itself to an accused criminal isn’t a comforting thought. Guilty conscience, much?

2. Yep, I’ll go along with that.

3. Can’t disagree with that either.

[Bricker]

@Nobody

@Bricker

Would a fair summary be, “The information seems harmless, but it’s possible that this information combined with other information could have proven harmful to this country therefore we’ll err on the side of caution and take the military’s word for it that it would have been harmful to release it at the time.”?

Well… not an UNfair summary, to be sure, but not a complete one.

The claim of privilege in 1954 rested on the fact that “…the aircraft in question, together with the personnel on board, were engaged in a highly secret mission of the Air Force.”

When the report sought was declassified in 2000, the daughter of one of the plaintiffs read it and found no “… detailed description of the ‘secret mission,’ ‘newly developing electronic devices,’ or ‘secret electronic equipment,’” and concluded that the Air Force had misused its claim of privilege.

The claim of privilege extended not only to the report, but to the testimony of the three surviving crash members. The Air Force offered to produce them for testimony but that the testimony be limited to non-classified information.

So it’s not just a matter of what the report said, but what the report said, PLUS what the crew members could be forced to answer under oath, PLUS any extraneous information not a part of the case.

The affidavit from the then-Secretary of the Air Force said:

…the aircraft in question, together with the personnel on board, were engaged in a confidential mission of the Air Force. The airplane likewise carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this Department and would not be in the public interest.

But as the court’s 2005 opinion points out:

From this, Plaintiffs deduce that only the mission and electronic equipment were confidential, but a broader reading of the affidavit suggests that beyond the mission itself, disclosure of technical details of the B-29 bomber, its operation, or performance would also compromise national security. The Secretary’s claim of privilege also indicates that the purpose of such accident investigation reports is to ensure continued efforts at flying safety.[2] Similarly, the affidavit taken by Judge General of the Air Force, Major General Reginald C. Harmon, characterizes the confidential nature of the accident investigation report more expansively. Major General Harmon’s affidavit indicates that furnishing the requested documents would seriously hamper "national security, flying safety and the development of highly technical and secret military equipment.

And finds:

Review of the accident investigation report indicates that though it offers no thorough exploration of the secret mission, it does describe the mission in question as an “electronics project” and an “authorized research and development mission.” Compl. at Ex. I. Specifically, the report states that “[t]he projects which the 3150th Electronics Squadron were conducting require aircraft capable of dropping bombs and operating at altitudes of 20,000 feet and above.” Id. It also provides a detailed account of the technical requirements imposed by the Air Force to remedy engine and mechanical difficulties. Id. The accident investigation report makes specific reference to Air Force technical orders geared to improving the functionality of the B-29 bombers, implementing “changes to the exhaust manifold assemblies for the purpose of eliminating a definite fire hazard” including installation of heat deflector shields “to prevent excessive heat from entering the accessory section,” and making the aircraft safe for flight. Compl. at ¶ 33, Ex. I and J. These affidavits, reports, and orders implicate far more than the particulars of the secret equipment aboard that flight; they also suggest the need to preserve engineering technology, mechanical and operational data, and equipment usage for the safety and development of the Air Force fleet. Details of flight mechanics, B-29 glitches, and technical remedies in the hands of the wrong party could surely compromise national security.

[Bricker]

@Polerius

What a crock of shit. If we buy this argument, the government never has to release any information regarding anything, ever, since, no matter how trivial the information seems to the lay person, some foreign intelligence analyst might piece it together with something else and come to a conclusion that hurts national security.

Which is why the Supreme Court said, about the secrets privilege:

The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.

I suppose, for the conspiracy-theory-inclined, that might translate to “The Government will always lie.”

[ivan_astikov]

Why, do you believe they don’t, even when telling the truth will diminish their power base?

[Bricker]

@ivan_astikov

Why, do you believe they don’t, even when telling the truth will diminish their power base?

Because I believe that for the most part, the department secretaries are honest people, selected after reasonable solid vetting by the President.

And more to the point, because I KNOW that any discussion must start from that position and lay the burden for showing otherwise on the one claiming that the official is lying.

Here in this thread, for example, you have asked readers to believe that Reynolds was “established on a lie,” but ignored, or failed to reveal, the fact that there’s no proof of that, and in fact the court that reviewed the declassified document rejected the claim that the government lied.

IN other words, you started a “misleading” thread with a “misleading” title and “misled” readers thereof about the truth.

Perhaps the reason you believe that government officials would so readily lie is that “the wicked flee when no man pursueth.”

[Little_Nemo]

@Bricker

When the report sought was declassified in 2000, the daughter of one of the plaintiffs read it and found no “… detailed description of the ‘secret mission,’ ‘newly developing electronic devices,’ or ‘secret electronic equipment,’” and concluded that the Air Force had misused its claim of privilege.

The claim of privilege extended not only to the report, but to the testimony of the three surviving crash members. The Air Force offered to produce them for testimony but that the testimony be limited to non-classified information.

So it’s not just a matter of what the report said, but what the report said, PLUS what the crew members could be forced to answer under oath, PLUS any extraneous information not a part of the case.

@Bricker

And more to the point, because I KNOW that any discussion must start from that position and lay the burden for showing otherwise on the one claiming that the official is lying.

Here in this thread, for example, you have asked readers to believe that Reynolds was “established on a lie,” but ignored, or failed to reveal, the fact that there’s no proof of that, and in fact the court that reviewed the declassified document rejected the claim that the government lied.

I’d argue that standard has been met. You can’t simply bundle all the evidence together and say the reports and the collective testimony of all three witnesses contained classified information. The Air Force’s position was that the report contained classified information and that the testimony of Witness A would have contained classified information and that the testimony of Witness B would have contained classified information and that the testimony of Witness C would have contained classified information.

And it’s now been established that the report did not contain any classified information. This, in my opinion, calls into question the Air Force’s claim that the testimony of the witnesses would have contained classified information. When somebody tells one lie you cannot simply assume that everything else they say is the truth.

[Bricker]

@Little_Nemo

The Air Force’s position was that the report contained classified information and that the testimony of Witness A would have contained classified information and that the testimony of Witness B would have contained classified information and that the testimony of Witness C would have contained classified information.

And it’s now been established that the report did not contain any classified information. This, in my opinion, calls into question the Air Force’s claim that the testimony of the witnesses would have contained classified information. When somebody tells one lie you cannot simply assume that everything else they say is the truth.

You mischaracterize the Air Force’s position.

In 1954, the Air Force said:

…the aircraft in question, together with the personnel on board, were engaged in a confidential mission of the Air Force. The airplane likewise carried confidential equipment on board and any disclosure of its mission or information concerning its operation or performance would be prejudicial to this Department and would not be in the public interest.

Nothing in the report contradicts that statement.

Moreover, the Air Force offered to let the three witnesses testify, except as to classified information..

So – where’s the “one lie” that causes you to lose trust here?

[Polerius]

@Bricker

@Polerius

What a crock of shit. If we buy this argument, the government never has to release any information regarding anything, ever, since, no matter how trivial the information seems to the lay person, some foreign intelligence analyst might piece it together with something else and come to a conclusion that hurts national security.

Which is why the Supreme Court said, about the secrets privilege:

The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.

I suppose, for the conspiracy-theory-inclined, that might translate to “The Government will always lie.”

First of all, don’t belittle the opposing argument by throwing out terms like “for the conspiracy-theory-inclined” and by attacking a strawman like 'that might translate to “The Government will always lie.” '. I didn’t claim that the government will always lie.

More to the point, what a rational person has to fear is not that the government will always lie, but that, if the government chooses to lie, it can do so with impunity, since they can always invoke the privilege when asked about the matter that they have just lied about.

Do you not see that this can happen?

Do you not think that checks and balances between the different branches of government are a good idea?

Do you not see how such a privilege erodes the checks and balances we have, because the Legislative and Judicial branches cannot accurately assess what the Executive branch did since the Executive branch can always invoke this privilege?

[Polerius]

@Bricker

@ivan_astikov

Why, do you believe they don’t, even when telling the truth will diminish their power base?

And more to the point, because I KNOW that any discussion must start from that position and lay the burden for showing otherwise on the one claiming that the official is lying.

I agree that any discussion must start from that position, but how would the person with the burden of proof that the official is lying, actually go about proving that? The government can always stop the release of information that would show that the official is lying, since, according to the Supreme Court’s decision, any information, no matter how seemingly trivial to a lay person, might be super-powerful in the hands of foreign intelligence gatherers and lead to national security issues, and thus can be protected from being divulged in court.

[Bricker]

@Polerius

First of all, don’t belittle the opposing argument by throwing out terms like “for the conspiracy-theory-inclined” and by attacking a strawman like 'that might translate to “The Government will always lie.” '. I didn’t claim that the government will always lie.

Sure you did. It’s a natural conclusion when combining this statement of yours:

What a crock of shit. If we buy this argument, the government never has to release any information regarding anything, ever, since, no matter how trivial the information seems to the lay person, some foreign intelligence analyst might piece it together with something else and come to a conclusion that hurts national security.

…with my summary of how the privilege must be claimed.

The government never has to release anything, says you, despite the fact that in order to claim the privilege, the government must make a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. So if the government never has to release anything after following that procedure, it follows, as does the night from the day, that the officer involved is lying.

More to the point, what a rational person has to fear is not that the government will always lie, but that, if the government chooses to lie, it can do so with impunity, since they can always invoke the privilege when asked about the matter that they have just lied about.

Perhaps, but this is why our system of government serves us well. Every four or eight years, the political part controlling the appointment of these officers changes, and the officers themselves change at least that frequently. Lies offered up by the old party would be fertile ground for the new to expose. So the “rational person” knows, or should know, that the system polices itself to guard against wholesale lies by department heads. And the “personal review” requirement means it is difficult, if not impossible, for the official to claim he was merely relying on the work of underlings.

[Polerius]

@Bricker

Perhaps, but this is why our system of government serves us well. Every four or eight years, the political part controlling the appointment of these officers changes, and the officers themselves change at least that frequently. Lies offered up by the old party would be fertile ground for the new to expose. So the “rational person” knows, or should know, that the system polices itself to guard against wholesale lies by department heads.

GQ-type question: how often has it happened that the new party in power exposed high-level lies from the old party in power?

I could be wrong, but I think historically the new party has been more interested in the continuation of the entity that is the US government, and not in persecuting things the previous administration did.

[Bricker]

@Polerius

@Bricker

Perhaps, but this is why our system of government serves us well. Every four or eight years, the political part controlling the appointment of these officers changes, and the officers themselves change at least that frequently. Lies offered up by the old party would be fertile ground for the new to expose. So the “rational person” knows, or should know, that the system polices itself to guard against wholesale lies by department heads.

GQ-type question: how often has it happened that the new party in power exposed high-level lies from the old party in power?

Generic lies? I have no idea. But this is different: it’s the personal representation from the department head - Secretary of the Air Force, in this case - as to the truth of the matter.

And in any event, the paucity of examples here shows that I’m right: lies along these lines just don’t happen much at all.

[Polerius]

@Bricker

And in any event, the paucity of examples here shows that I’m right: lies along these lines just don’t happen much at all.

Of course it doesn’t show that.

The paucity of examples shows that either these don’t happen that much, or that they happen a lot but for various reasons are not exposed. We don’t know which of these two options is true unless we have more information.

[Little_Nemo]

@Bricker

So – where’s the “one lie” that causes you to lose trust here?

The Air Force said that the crash report contained classified information. It did not.

[Bricker]

@Little_Nemo

@Bricker

So – where’s the “one lie” that causes you to lose trust here?

The Air Force said that the crash report contained classified information. It did not.

Cite?

[Bricker]

@Bricker

@Little_Nemo

The Air Force said that the crash report contained classified information. It did not.

Cite?

Specifcally, cite for this claim: “The Air Force said that the crash report contained classified information.”

[Little_Nemo]

@Bricker

Specifcally, cite for this claim: “The Air Force said that the crash report contained classified information.”

I was tipped off by the fact they classified it.