The doctrine of state secrecy, which was never enacted into law, is being used to override the Constitution. It has been used to conceal government blunders and lawlessness. Increasingly it is being used to deny people the right to due process of law.
Andrew Napolitano, writing in the Unz Review, gave an example.
When Gen. Michael Hayden, the director of both the CIA and the NSA in the George W. Bush administration and the architect of the government’s massive suspicionless spying program, was recently publicly challenged to deny that the feds have the ability to turn on your computer, cellphone or mobile device in your home and elsewhere, and use your own devices to spy on you, why did he remain silent?
The audience at the venue where he was challenged rationally concluded that his silence was his consent. [snip]
We know that the NSA can listen to all we say if we are near enough to a device it can turn on. (Quick: How close are you as you read this to an electronic device that the NSA can access and use as a listening device?)
And we also know that the feds gave secret roadside listening devices to about 50 local police departments, which acquired them generally without the public consent of elected officials in return for oaths not to reveal the source of the hardware.
It came from the secret budget of the CIA, which is prohibited by law from spying in the U.S. [snip]
For our liberty to survive in this fearful post-9/11 world, the government’s lawless behavior must be rejected not just by the words of dead people, but by the deeds of we the living.
When the president violates the Constitution and the Congress and courts do nothing to stop him, we have effectively amended the Constitution with a wink and a nod — by consent, if you will.
via The Unz Review.
Another example of now the Bill of Rights is being superseded by the state secrets doctrine came up recently in a libel suit. A Greek billionaire named Victor Restis sued a supposedly independent organization called United Against Nuclear Iran for libel, claiming that they falsely accused him of enabling trade with Iran.
The U.S. Department of Justice intervened, saying that letting the case go to trial would reveal “state secrets”. It didn’t explain how United Against Nuclear Iran, which claims to be independent of the government and reports no government contracts on its IRS forms, could possess state secrets. It refused to even report which government agency it was acting for.
Nevertheless, the judge, unhappily, dismissed the case. This means United Against Nuclear Iran is free to libel people and they can’t do anything about it.
This is far from the most serious example of use of the state secrets doctrine to deny people their Constitutional rights.
There was the famous case of Khaled el-Masri, a Germany citizen who was kidnapped in Macedonia, stripped, beaten, sodomized and drugged and then sent to a secret CIA-run site in Afghanistan, then later released without explanation.
He sued in U.S. courts, but the case never when to trial because the government invoked the doctrine of state secrets.
It is of course true that all governments have a legitimate interest in keeping secret such matters as the design of new weapons and the names of their spies. But the limits of what can be kept secret should be defined by law, and the burden of proof should be on the government to show that secrecy in any particular case is justified by law.
Otherwise there is no limit to the incompetence, corruption and tyranny than can occur behind the wall of secrecy.
Amendment by Consent by Andrew Napolitano for the Unz Review.
Court Accepts DOJ’s ‘State Secrets’ Claim to Protect Shadowy Neocons: a New Low by Glenn Greenwald for The Intercept.
Now Can Torture Victim Khaled el-Masri Have His Apology by Steven M. Watt for the American Civil Liberties Union.