State Secrets Privilege…A real thing that makes the federal government impenetrable

When the American people voted for Barack Obama in 2008 and again in 2012 they were promised a transparent federal government that had open communication with the American people.  A transparent federal government is a ludicrous idea, and any sensible person would laugh at the idea of the government telling the American people everything.  Recent revelations about the NSA have brought the issue of transparent government back into the mainstream.  I have seen numerous Facebook statuses and tweets from people expressing their disgusted with the government for collecting our personal data and not telling us about it.  I agree that what the government has been doing is wrong.  I agree with the idea that we have the right to privacy, (even though that term is not explicit in the constitution).  The constitution does ,however, give, “…The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   The fourth amendment, like any amendment, can and is interpreted in a number of different ways based on the vague language.  The NSA scandal brings up so many important talking points, but this article will focus on the increased secrecy of the federal government.

The fourth amendment has transformed over the history of this nation.  It has especially changed since the tragic events of September 11, 2001.  The federal government has become increasingly secretive, keeping information from the american people, and the courts letting them do it.  Since 9/11 the federal government has invoked the State secrets privilege dozens of times, over five times more than the previous fifty years, or since the State secret privilege was created.  The president’s power to invoke privilege sprung out of the 1953 case of The United States v. Reynolds.  The case involved the federal government withholding Air Force records from the plaintiffs by saying that their release would jeopardize national security.  The trial court and appeals court granted a directed verdict for the plaintiffs due to the withholding of relevant evidence in the case.  The US Supreme Court, however, reversed that ruling. This went against the established Federal Tort Claims Act, which states that a private individual has the right to sue the United States in federal courts for most torts committed by persons acting on behalf of the United States.  What United States v. Reynolds did was give the Federal government the power to withhold information if they felt it was in the best interest of the country.

The State secrets privilege, which was only invoked in four cases between 1953 and 1976, is troublesome.  If you compare that the years 2001 to 2008, in which it was invoked in 23 cases, you can see a big problem.  The State secrets privilege is a problem because it gives the federal government an upper hand in any litigation battle and allows our government to keep secrets from us.  The fact that its usage has grown exponentially in recent years is even more troublesome because it signals that this nation is increasingly afraid and the federal government is feeding on that.  This is especially relevant given the recent AP scandal in which the government obtained the phone records of journalists in the name of national interest.  The even more recent NSA scandal in which the government has been collecting our personal data  will bring this phenomena further into the national headlines.  We knew about it before, but now we have to face it.  These two recent events will not see trial because of the State secrets privilege.  We will never know what is under the tip of the iceberg unless someone leaks the information.  This person will no doubt be called a traitor for informing the people about what its government does.

It is time to hold the federal government accountable for using the post 9/11 islamaphobia to invade our privacy.  It doesn’t matter if you have “nothing to hide”, it’s the right to be secure with your self, houses, papers, and effect, that counts.

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One thought on “State Secrets Privilege…A real thing that makes the federal government impenetrable

  1. When young our enemies spied on people or used torture. we have been fighting for so long I cant tell the difference between us and them.

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