Glenn Greenwald poured out a 13,000-word column I just couldn't find the front door to. And with Greenwald, he's been known to get a little shrill and idealistic on some things...But today I found a great, concise, and brutal assessment of what just happened...
You Cover It Up, You Own It
That's assuming the secret should rightfully be kept in the first place. Nobody doubts that there are legitimate state secrets -- but the Bushies, and now apparently the Obama/Holder DOJ, thought that anything that makes the U.S. government look bad should be a state secret. The theory is that disclosing government crime or misconduct would embarrass the government in the eyes of the world, and whatever embarrasses the government in the eyes of the world harms national security. This misbegotten theory holds that sunlight isn't the best disinfectant, it's the source of hideous wasting disease. Government wrongdoing must be concealed because, well, it's government wrongdoing.
The state secrets privilege, used to cover up wrongdoing rather than to protect legitimate national security secrets, is an all-out assault on public accountability and, ultimately, on democracy. By now, it's well-known that the state secrets privilege was born in original sin. The 1953 case in which the Supreme Court established it, United States v. Reynolds, 345 U.S. 1 (1953), turned out, when documents were declassified nearly half a century later, to be a cover-up of gross negligence under a false assertion that the documents contained national security information.
Andrew Sullivan is right to observe here that "with each decision to cover for their predecessors, the Obamaites become retroactively complicit in [their deeds]." Retroactive complicity is an important, and underexamined, moral category. People cover up for others for many reasons, not all of them bad. But the longer and more involved the cover-up becomes, the more deeply implicated you get -- not only in the cover-up, but in the original misdeeds that you're concealing as well. Little by little, you come to own the deeds yourself. Or they own you. It's time to throw away the Ring, Frodo, before it hooks you and enslaves you.
I have to hope that this is just a punt on the first case so the Administration can reassess going forward. After all, that column is from Marty Lederman's old blog, Balkinization. LEderman is a longtime outspoken critic of pretty much everything about the Bush Administration—from torture to executive privilege, and one would assume, bullshit "State Secrets" claims. Marty Lederman is not teaching law or blogging anymore because he now sits at John Woo's old desk working for Obama' Office of Legal Council.
Tim F [h/t] at Balloon Juice put it thusly:
Marty Lederman must be shitting a two story colonial townhouse right now. I have to assume that Lederman and other principled hires at the DoJ will either ensure that decisions like this do not happen again or else he will resign.
Let's hope so. There is 8 years of crooked bullshit to dig through, and I'm not asking for everything to be back in order in four weeks, but this was indeed a disappointing decision, and warrants keeping an eye on.