Why the Government Can Legally Lie

One of the principal marks of the George W. Bush administration has been the inability to hold investigations, congressional inquiries, or trials in so many cases because evidence required for any of these processes is classified secret, or otherwise privileged. This is a growth industry. In 1997, there were three million officials with clearance to read classified documents. From 1952 to 1976, the privilege of withholding state secrets was invoked in five court cases. From 1977 to 2001, it was used sixty-two times. In the first four years of the Bush administration, it was used thirty-nine times, more than in any preceding administration, and still counting.

It can be argued, of course, that the war on terror has made state secrets more central to our national life and judicial proceedings. But it has long been suspected, and even asserted by those in a position to know, that the withholding of privileged information is a very convenient way to cover up executive crimes and bungling. As early as 1953, Attorney General Herbert Brownell told President Eisenhower that classification procedures were “so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.” And in 1989, Erwin Griswold, who as solicitor general had argued against publication of the Pentagon Papers, confessed that there were no state secrets in those papers, and published an Op-Ed column in The Washington Post saying:

It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification, and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort of another [emphasis added].

If any suspect that Griswold was exaggerating, they should reflect on the fact that the principal Supreme Court case justifying the invocation of the national security privilege was based on a governmental lie. That case is U.S. v. Reynolds (1953), the subject of two outstanding books, one by Louis Fisher, senior scholar of the Law Library in the Library of Congress, the other by Pulitzer Prize–winning journalist Barry Siegel, who is now the director of the literary journalism program at the University of California, Irvine. The tale they have to tell is a disheartening one, of government lying and the willingness of courts to accept it.

On October 6, 1948, an Air Force plane exploded and fell out of the sky in Georgia. It was doing experimental work on a guided missile system called Banshee. Five of the eight crew members aboard and four of the five civilians died.

The other four parachuted to safety. It came out in an interview with the one surviving civilian that he and his non–Air Force fellows had not been instructed in the use of escape hatches; and there had been trouble with fires on other B-29s, so there seemed a prima facie case of criminal neglect …

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