Today's Article
Why no group
should have
unchecked power in
a free society.
should have
unchecked power in
a free society.
The American Spark
 |
 |
 |
 |
 |
New Book Exposes Flaws In "State Secret Privilege"
By Cliff Montgomery
Coming into the final stretch of the election on Nov. 7th, it may help us to reconsider what has been said by many pollsters
to be the number one issue driving Americans to the polls: the sprawling "War on Terror", and how it seems to have lost
its way.
Many experts, such as those at the Federation of Scientists (FAS), a non-profit watchdog organization specializing in
affairs of government secrecy, says that one of the greatest current ills is the Bush Administration's unfounded desire to
keep a growing number of government matters from the eyes--and discussions--of the American people.
The FAS says such an increase in secrecy practically ensures the kind of "group think" mentality which took us to Iraq, a
mentality which refused to admit the claims of continued WMD fears regarding Iraq were "dead wrong."
No less a non-partisan group than the famed 9/11 Commission has stated that the aura of increased secrecy under the
Bush Administration is serving only to make Americans less safe, not safer.
Now a recent book by acclaimed author Louis Fisher takes dead aim at the legal precedent for giving the career politician
in the White House an unchecked power over what is and is not known in this "free" society. In the Name of National
Security: Unchecked Presidential Power and the Reynolds Case was released in September 2006, and gives a clear,
direct analysis of the current problem.
Louis Fisher is a senior scholar in the Law Library at the Library of Congress, as well as a former Senior Specialist in
Separation of Powers at the Congressional Research Service (CRS) of the Library of Congress. He is author of more
than a dozen books, including Presidential War Power, Constitutional Conflicts Between Congress and the President, and
Military Tribunals and Presidential Power, which like his most recent book have all been published by the University
Press of Kansas.
Exactly where does the 256-page, $34.95 book begin? With the explosion of a B-29 bomber over the U.S. state of Georgia
in 1948. The victims’ families were denied access to crucial information relating to the accident after the Truman
Administration claimed such access would "endanger national security."
When the Supreme Court upheld that claim in United States v. Reynolds (1953), a dangerous new precedent was
established, allowing the executive branch to claim an unchecked “state secret privilege” as the basis for withholding any
government information whatsoever from public scrutiny.
For more than fifty years that decision has worried a great many scholars and citizens, who recognize that in the wrong
hands it could foster a dangerous cult of secrecy. Such a ruling, they continue, may even have undermined the "balance
of powers" upon which any modern democracy is founded, by declaring that only the executive branch can be trusted
with sensitive material.
Fisher's book recounts the story of the Reynolds case to reassess its lasting impact on our society.
"Taking us back to a time when Americans were preoccupied with protecting military secrets from the Red Menace," the
book jacket declares, "Fisher shows how this case produced fundamental distortions in the judicial process that have
increased with each passing year."
He begins with a critique of the Truman Administration's arguments in Reynolds--from district court to Supreme Court--and
further dissects the landmark opinion authored by Chief Justice Fred Vinson. He then explains how Reynolds affected
subsequent battles over executive-held information both within the courts--i.e., the Pentagon Papers, the Watergate
tapes, etc.--and between Congress and the president, as exemplified by the Freedom of Information Act (FOIA) and the
much-debated Foreign Intelligence Surveillance Act (FISA).
Drawing upon de-classified documents and interviews with surviving members of the Reynolds family, Fisher weaves a
story with a very interesting--and very timely--final twist: it has recently been discovered that the information originally
withheld in the Reynolds case was not sensitive at all, but rather revealed an embarrassing Air Force negligence.
Since the Bush Administration continues to use Reynolds to justify its post-9/11 claims to absolute authority, Fisher’s work
could not be more timely.
"His book is essential reading for all who question presidential authority," adds the book jacket, "and should be required
reading for all who don’t."
By Cliff Montgomery
Coming into the final stretch of the election on Nov. 7th, it may help us to reconsider what has been said by many pollsters
to be the number one issue driving Americans to the polls: the sprawling "War on Terror", and how it seems to have lost
its way.
Many experts, such as those at the Federation of Scientists (FAS), a non-profit watchdog organization specializing in
affairs of government secrecy, says that one of the greatest current ills is the Bush Administration's unfounded desire to
keep a growing number of government matters from the eyes--and discussions--of the American people.
The FAS says such an increase in secrecy practically ensures the kind of "group think" mentality which took us to Iraq, a
mentality which refused to admit the claims of continued WMD fears regarding Iraq were "dead wrong."
No less a non-partisan group than the famed 9/11 Commission has stated that the aura of increased secrecy under the
Bush Administration is serving only to make Americans less safe, not safer.
Now a recent book by acclaimed author Louis Fisher takes dead aim at the legal precedent for giving the career politician
in the White House an unchecked power over what is and is not known in this "free" society. In the Name of National
Security: Unchecked Presidential Power and the Reynolds Case was released in September 2006, and gives a clear,
direct analysis of the current problem.
Louis Fisher is a senior scholar in the Law Library at the Library of Congress, as well as a former Senior Specialist in
Separation of Powers at the Congressional Research Service (CRS) of the Library of Congress. He is author of more
than a dozen books, including Presidential War Power, Constitutional Conflicts Between Congress and the President, and
Military Tribunals and Presidential Power, which like his most recent book have all been published by the University
Press of Kansas.
Exactly where does the 256-page, $34.95 book begin? With the explosion of a B-29 bomber over the U.S. state of Georgia
in 1948. The victims’ families were denied access to crucial information relating to the accident after the Truman
Administration claimed such access would "endanger national security."
When the Supreme Court upheld that claim in United States v. Reynolds (1953), a dangerous new precedent was
established, allowing the executive branch to claim an unchecked “state secret privilege” as the basis for withholding any
government information whatsoever from public scrutiny.
For more than fifty years that decision has worried a great many scholars and citizens, who recognize that in the wrong
hands it could foster a dangerous cult of secrecy. Such a ruling, they continue, may even have undermined the "balance
of powers" upon which any modern democracy is founded, by declaring that only the executive branch can be trusted
with sensitive material.
Fisher's book recounts the story of the Reynolds case to reassess its lasting impact on our society.
"Taking us back to a time when Americans were preoccupied with protecting military secrets from the Red Menace," the
book jacket declares, "Fisher shows how this case produced fundamental distortions in the judicial process that have
increased with each passing year."
He begins with a critique of the Truman Administration's arguments in Reynolds--from district court to Supreme Court--and
further dissects the landmark opinion authored by Chief Justice Fred Vinson. He then explains how Reynolds affected
subsequent battles over executive-held information both within the courts--i.e., the Pentagon Papers, the Watergate
tapes, etc.--and between Congress and the president, as exemplified by the Freedom of Information Act (FOIA) and the
much-debated Foreign Intelligence Surveillance Act (FISA).
Drawing upon de-classified documents and interviews with surviving members of the Reynolds family, Fisher weaves a
story with a very interesting--and very timely--final twist: it has recently been discovered that the information originally
withheld in the Reynolds case was not sensitive at all, but rather revealed an embarrassing Air Force negligence.
Since the Bush Administration continues to use Reynolds to justify its post-9/11 claims to absolute authority, Fisher’s work
could not be more timely.
"His book is essential reading for all who question presidential authority," adds the book jacket, "and should be required
reading for all who don’t."