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Friday, April 15, 2005

State Secrets and Tyranny

If the government derives its power from the consent of the governed, how does it justify keeping its actions secret? How can the governed give consent if it is not allowed to know what is being done?

Apparently these are questions the Bush Administration takes very seriously. They take them so seriously that they have moved to make sure that the governed give their consent by being unable to withhold consent. After all, you do not need to give consent for something that does not officially occur.

William Weaver and Robert Pallitto of UTEP are in the process of exploring this problem. I just finished moderating a panel in which they presented a paper entitled “State Secrets and Executive Power” that provides some details about the Bush Administrations use of State Secrets privilege in court proceedings. Apparently, the 254 times the Bush Administration exerted such privilege represent a record.

The idea of a States Secrets privilege is based on the idea that the government may need to take action quickly and secretly. Traditionally, this has been used to protect such things as peace treaty negotiations and military project development. However, Weaver and Pallitto show that the Bush Administration appears willing to use it simply to avoid being embarrassed. The much ballyhooed example of Dick Cheney’s Energy Task Force is one such example.

More notable to me was the extension of the ability to make government documents secret to the heads of the Department of Agriculture, Department of Health and Human Services, and the Environmental Protection Agency. I fully agree that the State Department and Defense Department need secrecy to fulfill their duties. Exactly what is the EPA doing that requires secrecy?

The news in the last few weeks shows some possible reasons. This story tells of how a study to expose poor children to pesticides was cancelled, largely due to public uproar. The Department of Agriculture is shown here discussing the possibility that cloned meat and milk are probably safe for human consumption. The supervision of the FDA technically falls under Health and Human Services – which maintains a list of recalled drugs here - is entrusted with making sure the drugs we are sold do not kill us (Vioxx anyone?). If these organizations can prevent this information from being used in court simply by saying, “This is a State Secret,” then what recourse will exist to correct such problems? Imagine what could happen if the government could prevent disclosure of this type of information simply because it would implicate the President in a crime (like Watergate).

This is all the more troubling because the States Secrets privilege doesn’t legally exist. Congress has never encoded it into a legal power of the government. While I don’t want to sound like some kook spouting conspiracy theory, the fact remains that the Department of Agriculture should not have the power to hide its actions from the people – us – who give it the power to exist.

Power corrupts, and it is ludicrous to believe that the Executive branch of government will simply not abuse its power if it can hide its actions from public oversight. It is a perversion of our entire system of government. The American Revolution was fought against a dictator that used his power capriciously and justified his actions to no one but himself (sounds a bit like Saddam Hussein, no?). While I do not claim on any grounds that George Bush is behaving like King George. He is simply laying the groundwork for someone else to do so.

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